THE UNIVERSITY LIBRARY
PROTECTION OF AUTHOR ’S COPYRIGHT
This copy has been supplied by the Library of the University of Otago on the understanding that the following conditions will be observed:
1. To comply with s56 of the Copyright Act 1994 [NZ], this thesis copy must only be used for the purposes of research or private study.
2. The author's permission must be obtained before any material in the thesis is reproduced, unless such reproduction falls within the fair dealing guidelines of the Copyright Act 1994. Due acknowledgement must be made to the author in any citation.
3. No further copies may be made without the permission of the Librarian of the University of Otago.
August 2010
1 1
New New Zealand. Zealand.
at at the the University University of of Otago, Otago, Dunedin, Dunedin,
Master Master of of Laws Laws
A A thesis thesis submitted submitted for for the the degree degree of of
Caroline Caroline Homibrook Homibrook
to to be be Hit. Hit.
Parental Parental Control Control and and the the Child's Child's Right Right Not Not
2 2
viii) viii) An An instance instance where where rights rights might might clash: clash: Best Best interests interests v v
vii) vii) Is Is there there a a parental parental right right to to hit hit a a child? child? 43 43
vi) vi) Needs Needs based based rights rights and and dignity dignity based based rights rights 40 40
v) v) Autonomy Autonomy 39 39
iv) iv) Best Best Interests Interests and and Paternalism Paternalism 37 37
iii) iii) Positive Positive and and Negative Negative Rights Rights 36 36
A A brief brief summary summary of of research research the into into the the effects effects of of punishment punishment physical 31 31
ii) ii) The The Interest Interest Theory Theory 30 30
0TheMUThwry 0TheMUThwry ~ ~
b) b) Children's Children's Rights Rights 28 28
iii) iii) Capacity Capacity and and consent consent 27 27
ii) ii) Capacity Capacity and and age age discrimination discrimination 25 25
i) i) Fundamental human human Fundamental rights rights 23 23
a) a) Human Human Rights Rights 23 23
2. 2. Do Do children children have have the the right right to to physical physical integrity? integrity? 20 20
The The claim claim of of a a right right 1. 1. to to physical physical integrity integrity 15 15
Chapter Chapter One: One: Children's Children's Rights Rights to to Physical Physical Integrity. Integrity. 15 15
Introduction Introduction 9 9
Acknowledgements Acknowledgements 8 8
Abstract Abstract 6 6
Page Page
Contents Contents
19 19 September September 2008 2008 Autonomy in giving evidence 45
3. How child-centred policy is influenced by our understanding 48 of children's rights
Chapter Two: Changing the Law 52
1. A brief New Zealand history of domestic discipline legislation 52 a) The development of legislation 52 b) The United Nations Convention on the Rights of the Child 1989 56 (UNCRC).
i) Guidelines 58
ii) Reports 59
iii) General Comments 64
2. The lead up to the amendment of Section 59 of the Crimes Act 1961 68
a) What the initial Bill was about 68
b) An exercise in social change 70
3. What went wrong? How the purpose behind the Bill was lost 73
a) Child Abuse 74
b) The Criminalisation of Parents 77
c) Religion 78
Chapter Three: The Problem of Parental Control 82
1. Section 59 of the Crimes Act: Parental Control 83
a) The non-existence of the defence prior to June 2007 86
b) The availability of alternative defences 90
3 2. The prescriptive quality of the Parental Control defence 92
3. The effect of affirming police discretion 97 a) Police discretion already exists 98 b) How s59( 4) effects the underlying message of the provision 100 c) Integrity of the Crimes Act and Immunity From Review 102
4. Putting a child on the 'naughty step' 105 a) Is this another "gap in the law"? 106 b) What was the point in the amendments? Why not just repeal s59? 107
Chapter Four: Putting Parental Control through the tests 111
1. The use of force for the purposes of correction 114
a) Force used for the purposes of correction, when the force used is 'hitting' or striking actions- smacking the child as punishment for swearing 115
b) Force used for the purposes of correction, when the force used is not 'hitting' or striking actions- putting the child in time out as punishment for swearing 119
2. The use of force for the purposes other than correction 121
a) Force used for purposes other than correction, when the force used is 'hitting' or striking actions 121
b) Force used for purposes other than correction, when the force used is not 'hitting' or striking actions 127
c) Summary of Analysis 129
3. Furthering children's rights beyond repeal 132
4 Conclusion 135
Appendix 1: 136
Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill 2005
Appendix 2: 138
Justice and Electoral Select Committee, "Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill
Appendix 3: 149
Police Practice Guide
Appendix 4: 155
Selected paragraphs of the Solicitor General's Prosecution Guidelines
Bibliography. 158
5
6 6
provision provision are are highlighted, highlighted, and and its its impact impact on on children's children's rights rights is is explored. explored.
Chapter Chapter three three is is an an assessment assessment of of the the new new Parental Parental Control Control provision. provision. The The problems problems with with the the
chapter chapter also also briefly briefly highlights highlights the the reasons reasons behind behind public resistance resistance public to to the repeal repeal the of of s59. s59.
consequences consequences of of ratifying ratifying the the United United Nations Nations Convention Convention on on the the Rights Rights of of the the Child. Child. This This
Chapter Chapter two two explores explores the the history history of of New New Zealand's Zealand's domestic domestic discipline discipline legislation, legislation, and and the the
not not to to be be hit hit as as adults. adults.
theoretical theoretical and and jurisprudential jurisprudential foundation foundation for for the the conclusion conclusion that that children children have have the the same same right right
Chapter Chapter one one outlines outlines competing competing rights rights arguments. arguments. This This chapter chapter is is designed designed to to give give a a
Control Control provision provision has has created created ambiguities ambiguities in in the the law law that that never never existed existed in in the the past. past.
same same level level of of protection protection from from assault assault as as adults adults under under the the law. law. Furthermore, Furthermore, the the Parental Parental
remove remove the the legitimised legitimised use use of of force force against against children children means means that that children children still still do do not not enjoy enjoy the the
parents parents to to use use some some degree degree of of force force against against their their children. children. However, However, the the failure failure to to completely completely
in in favour favour of of a a substitution substitution provision provision that that would would do do away away with with physical physical punishment punishment but but allow allow
misunderstanding. misunderstanding. Consequently, Consequently, a a full full repeal repeal of of s59 s59 of of the the Crimes Crimes Act Act 1961 1961 was was abandoned abandoned
towards towards the the abolishment abolishment of of physical physical punishment punishment was was fraught fraught with with public public concern concern and and
with with respect respect to to children's children's rights, rights, specifically specifically the the right right not not to to be be hit. hit. New New Zealand's Zealand's journey journey
This This thesis thesis is is an an examination examination of of the the Crimes Crimes (Substituted (Substituted Section Section 59) 59) Amendment Amendment Act Act 2007 2007 Abstract Abstract
7 7
s59, s59, the the new new s59, s59, and and the the complete complete repeal repeal of of s59. s59.
predecessor. predecessor. In In this this chapter, chapter, real real and and hypothetic hypothetic cases cases are are put put through through three three tests: tests: The The old old
Chapter Chapter four four contains contains a a case case analysis analysis to to compare compare the the new new Parental Parental Control Control provision provision with with its its
8 8
reinforce reinforce in in my my own own mind mind that that children children are are precious, precious, and and deserve deserve right right the not not to to be be hit. hit.
grow, grow, and and experiencing experiencing your your vulnerability vulnerability and and personalities, personalities, budding has has really really helped helped to to
Finally, Finally, I I want want to to acknowledge acknowledge my my gorgeous gorgeous niece, niece, Lily, Lily, and and nephew, nephew, Theo. Theo. Watching Watching you you
your your schedule, schedule, and and would would have have been been much much less less enjoyable enjoyable without without your your company. company.
example example you you have have set set for for me. me. This This thesis thesis might might have have gone gone on on longer longer if if I I were were not not keeping keeping to to
me. me. Thank Thank you you John, John, not not for for only your your meticulous meticulous proof proof reading, reading, but but also also for for the the solid solid
would would have have been been able able to to undertake undertake this this project project if if not not for for your your generosity generosity and and your your belief belief in in
Thank Thank you you to to my my family, family, especially especially Mum, Mum, for for the the emotional emotional and and financial financial support. support. never never I I
my my thoughts thoughts on on the the criminal criminal aspects aspects of of this thesis. thesis. this
debate, debate, and and John John Dawson Dawson for for critically critically reading reading an an article article of of mine, mine, and and helping helping me me to to focus focus
Ahdar Ahdar for for lending lending me me vast vast amounts amounts of of research research on on physical physical punishment punishment and and the the smacking smacking
the the hours hours you you spent spent reading reading and and re-reading re-reading the the drafts drafts of of this this thesis. thesis. Thank Thank you you also also to to Rex Rex
and and encouragement encouragement made made this this daunting daunting task task seem seem less less so, so, and and I I will will forever forever be be grateful grateful for for
journey. journey. Firstly, Firstly, special special thanks thanks to to Mark Mark Henaghan, Henaghan, my my supervisor. supervisor. Your Your endless endless enthusiasm enthusiasm
I I would would like like to to thank thank several several people people who who have have helped helped and and supported supported me me along along this this very very long long Acknowledgements Acknowledgements
9 9
2005, 2005, no no 271-1 271-1
4 4
Section Section 59(1)(a)-(d) 59(1)(a)-(d) Crimes Crimes Act Act 1961. 1961.
3 3
Section Section 59(1) 59(1) Crimes Crimes Act Act 1961, 1961, prior prior to to amendment. amendment.
2 2
Section Section 5 5 Crimes Crimes (Substituted (Substituted Section Section 59) 59) Amendment Amendment Act Act 2007. 2007.
1 1
creating creating a a new new defence defence of of reasonable reasonable force force for for parents. parents. Specifically, Specifically, despite despite abolishing abolishing the the
protection protection from from invasion invasion of of this this right right as as adults. adults. Section Section 59 59 qualifies qualifies children's children's rights rights by by
a a fundamental fundamental human human right, right, it it and and as as stands stands children children still still do do not not enjoy enjoy the the same same level level of of
children children and and other other members members of of society society with with respect respect to to physical physical integrity. integrity. Physical Physical integrity integrity is is
This This thesis thesis explores explores how how the the amendment amendment to to s59 s59 has has failed failed to to address address the the inequality inequality between between
discretion discretion not not to to prosecute prosecute cases cases inconsequential of of force force used used against against a a child. child.
persons persons in in the the place place of of a a parent parent may may still still use use reasonable reasonable force. force. Subsection Subsection 4 4 affirms affirms the the police police
could could be be passed passed into into law. law. Section Section 59(1)(a)-(d) 59(1)(a)-(d) now now sets sets out out the the situations situations where where parents parents or or
political political interest interest in, in, the the Bill Bill that that meant amendments amendments were were made made to to its its content content to to ensure ensure that that it it
Amendment Amendment Bill was was bid bid a for for a a full full repeal repeal of of s59. s59. However, However, severe severe public resistance resistance public to, to, and and
4 4
In In its its original original form, form, the the Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline)
correction. correction.
3 3
existing existing gap gap in in the the law law concerning concerning the the parental parental use use of of force force for for purposes purposes other other than than
remove remove the the justification justification of of reasonable reasonable force force for for the the purposes purposes of of correction, correction, and and to to fill fill an an
2 2
defence defence with with a a new new defence defence of of 'parental 'parental control'. control'. The The effect effect of of this this amendment amendment was was to to
1 1
In In 2007, 2007, Section Section 59 59 of of the the Crimes Crimes Act Act 1961 1961 was was amended amended to to replace replace the the 'domestic 'domestic discipline' discipline' Introduction. Introduction.
10 10
Ibid, Ibid, volume volume 2 2 at at page page 2883. 2883.
10 10
Volumes Volumes 1 1 at at page page 1248. 1248.
Brown Brown (ed) (ed) Shorter Shorter Oxford Oxford English English Dictionary Dictionary (5 Edition, Edition, Oxford Oxford University University Press, Press, 2002) 2002) h h
9 9
1
Section Section 2 2 Crimes Crimes 1961. 1961. Act
8 8
Prosecution Prosecution Guidelines, Guidelines, Crown Crown Law Law Office, Office, March March 1992, 1992, para para 3. 3.
where where prosecution prosecution would would not not be be in in the the public public interest. interest.
The The existing existing police police guidelines guidelines give give police police discretion discretion not not to to prosecute prosecute minor minor cases cases of of assault, assault,
7 7
physical physical contact contact which which is is generally generally acceptable acceptable in in the the ordinary ordinary conduct conduct of of daily daily life". life".
Collins Collins v v Wilcock Wilcock [1984] [1984] 1 1 W.L.R. W.L.R. 1173 1173 suggests suggests the the that common common law law might might excuse excuse "all "all
6 6
Section Section 41 41 Crimes Crimes Act Act 1961. 1961.
5 5
might might best best be be described described through through the the Straus Straus and and Donnelly Donnelly definition: definition:
flat flat surface; surface; slap." Smacking Smacking or or hitting hitting as as a a form form of of corporal corporal punishment punishment in in our our culture culture
10 10
defined defined as as "strike "strike (a (a person, person, part part of of the the body, body, etc.) etc.) with with an an open open hand hand or or something something having having a a
blow blow or or missile; missile; deliver deliver (a (a blow blow or or stroke); stroke); strike strike (a (a person person etc. etc. a a blow blow etc.)". 'Smack' 'Smack' is is
9 9
The The Shorter Shorter Oxford Oxford English English Dictionary Dictionary defines defines 'hit' 'hit' as: as: "strike "strike (a (a person person or or thing) thing) with with a a
assault assault has has a a corresponding corresponding meaning." meaning."
believe believe on on reasonable reasonable grounds grounds that that he he has, has, present present ability ability to to effect effect his his purpose; purpose; and and to to
to to the the person person of of another, another, if if the the person person making making the the threat threat has, has, or or causes causes the the other other to to
another, another, directly directly or or indirectly, indirectly, or or threatening threatening by by any any act act or or gesture gesture to to apply apply such such force force
"the "the act act of of intentionally intentionally applying applying or or attempting attempting to to apply apply force force to to the the person person of of
The The definition definition of of in in assault the the Crimes Crimes Act is: is:
8 8
physical physical contact contact with with another another person, person, and and perhaps perhaps cause cause them them some some degree degree of of pain. pain.
Hitting Hitting requires requires intention. intention. It It requires requires the the person person administering administering the the blow blow to to intend intend to to make make
to to commit commit suicide, or or patting patting someone someone the the on back, however however hitting hitting is is not not tolerated.
5 5 6 6 7 7
physical physical integrity integrity can can be be justifiably justifiably invaded, invaded, for for example, example, restraining restraining person person a who who is is about about
Adults Adults enjoy enjoy the the right right not not to to be be hit. hit. There There are are certain certain situations situations where where an an adult's adult's right right to to
important important part part of of physical physical integrity: integrity: the the right right not not to to be be hit. hit.
use use of of reasonable reasonable force force for for the the purposes purposes of of correction, correction, s59 s59 has has failed failed to to recognise recognise an an
11 11
Where Where the the force force used used was was considered considered to to be be reasonable reasonable in in the the circumstances. circumstances.
13 13
For For example, example, picking picking a a child child up up and and putting putting them them in in time time out. out.
12 12
Perspective, Perspective, Yale Yale University University Press, Press, London, London, 2005, 2005, page page 3. 3.
Straus, Straus, M. M. A. A. Donnelly, Donnelly, M. M. (Eds.) (Eds.) & & Corporal Corporal Punishment Punishment of of Children Children in in Theoretical Theoretical
Straus, Straus, M. M. A. A. Donnelly, Donnelly, M., M., "Theoretical "Theoretical & & Approaches Approaches to to Corporal Corporal Punishment" Punishment" in in
11 11
amounted amounted to to assault. assault. Prior Prior to to 2007, 2007, parents parents had had a a defence defence for for smacking if if the the smack smack was was
13 13
Before Before s59 s59 was was amended, amended, uses uses of of force force other other than than for for the the purposes purposes of of correction correction technically technically
apply apply any any other other form form of of force force either, either, when when their their intention intention is is to to correct correct the the child.
12 12
child child as as a a disciplinary disciplinary technique, technique, however, however, the the wording wording of of the the Act Act means means that that they they cannot cannot
this this is is what what the the 'smacking' 'smacking' debate debate was was largely largely focused focused on. on. Parents Parents can can no no longer longer smack smack a a
against against children. children. It It specifically specifically prohibits prohibits the the use use of of force force for for the the purposes purposes of of correction, correction, and and
The The parental parental control control provision provision reads reads intention intention into into the the justifiable justifiable and and prohibited prohibited uses uses of of force force
relevant relevant under under our our current current law, law, and and how how this this has has resulted resulted in in a a failure failure to to ban ban smacking. smacking.
amount amount to to assault. assault. In In chapter chapter four four I I will will demonstrate demonstrate that that the the reasons reasons why why a a child child is is hit hit are are
Technically, Technically, any any intended intended application application (or (or threat threat of of application) application) of of force force on on another another can can
referred referred to to in in the the definition definition of of assault, assault, nor nor is is the the intention intention behind behind the the use use of of the the force. force.
'Hitting', 'Hitting', 'smacking', 'smacking', 'spanking' 'spanking' or or even even 'punching', 'punching', and and 'kicking' 'kicking' are are not not specifically specifically
that that hitting hitting hurts.
11 11
since since our our culture culture leads leads people people to to focus focus on on why why the the child child was was hit, hit, rather rather than than the the fact fact
intentional, intentional, not not incidental. incidental. This This point point may may seem seem obvious, obvious, but but is is salutary salutary to to emphasise, emphasise,
as as putting putting antiseptic antiseptic on on a a cut. cut. It It also also makes makes explicit explicit the the fact fact that that causing causing pain pain is is
corporal corporal punishment punishment from from acts acts that that have have other other purposes purposes but but may may also also cause cause pain, pain, such such
phrase phrase "with "with the the intention intention of of causing causing a a child child to to experience experience pain" pain" distinguishes distinguishes
physical physical abuse: abuse: our our subject subject is is socially socially acceptable acceptable and and legal legal corporal corporal punishment. punishment. The The
The The phrase phrase "pain "pain but but not not injury" injury" helps helps to to distinguish distinguish corporal corporal punishment punishment from from
not not injury, injury, for for the the purpose purpose of of correcting correcting or or controlling controlling the the child's child's behaviour. behaviour.
The The use use of of physical physical force force with with the the intention intention of of causing causing a a child child to to experience experience pain pain but but administered for the purpose of correction, but they had no statutory protection from prosecution for other uses of force that technically amounted to assault. 14 The Justice and
Electoral Committee drafted subsection l(a)-(d) to fill this gap in the law in an attempt to
calm a nervous public, despite the fact it had never caused any ridiculous outcomes. 15
The amendments to the bid for a full repeal of s59 answered a completely different issue to
the one that was concerning the New Zealand public. The public were (and still are)
concerned with the parental right to smack or hit their children as a form of discipline. The
amendments to the bill were designed to address these concerns, but instead made provision
for an entirely different set of circumstances, where the use of force is not for the purposes of
correction.
What is widely misunderstood, however, is that this law is not 'anti-smacking'. The Parental
Control provision continues to grant parents the use of reasonable force against their children,
and even though it sets out the situations in which reasonable force may be used, it does not
prohibit smacking. Reasonable force is left undefined, therefore any use of force could
potentially be used against a child, whether it be hitting or restraint, so long as it comes
within the parameters on subsection (l)(a)-(d). Furthermore, subsection (l)(a)-(d) is drafted
in such an imprecise manner (presumably to cover the maximum number of potential
situations where legitimate force can be used) that loopholes are created for the use of force
14 For example, restraining a child to put a seatbelt on, or snatching a child's hand away from a hot element. 15 Just because a statute is silent on an area of law, does not mean there is no protection from ridiculous prosecutions. In chapter 3 I will discuss the common law alternatives to the parental control provision, and in chapter 4 I will demonstrate how the law would be more effective, and better promote children's rights if s59 had simply been repealed.
12
13 13
resistance resistance to to the the Crimes Crimes (Substituted (Substituted Section Section 59) 59) Amendment Amendment Act Act 2007. 2007. In In chapter chapter three three I I
Convention Convention on on the the Rights Rights of of the the Child, Child, and and some some of of the the factors factors that that formed formed the the public public
examine examine the the history history of of domestic domestic discipline discipline in in New New Zealand, Zealand, the the impact impact of of the the United United Nations Nations
This This thesis thesis justifies justifies children's children's rights, rights, specifically specifically the the right right not not to to be be hit. hit. In In chapter chapter two two I I will will
with with under under common common law, law, just just as as they they were were before before the the amendment. amendment.
their their bodily bodily integrity: integrity: would would hitting not not be be tolerated, tolerated, and and all all other other uses uses of of force force could could be be dealt dealt
was was silent silent on on the the issue. issue. Children Children would would have have held held the the same same status status as as adults adults with with respect respect to to
ironically, ironically, the the law law surrounding surrounding the the use use of of force force against against children children would would have have been been clearer clearer if if it it
human human rights. rights. A A simple simple repeal repeal of of s59 s59 would would have have better better addressed addressed children's children's rights, rights, and and
of of definition, definition, and and has has set set children children apart apart as as a a group group in society society in who who are are less less deserving deserving of of basic basic
Codification Codification in in this this case case has has failed failed to to protect protect children children from from hitting hitting or or smacking smacking through through a a lack lack
statutory statutory protection protection never never existed existed in in the the past, past, and and its its absence absence never never caused caused any any problems. problems.
parenting parenting tasks, tasks, it it is is unnecessary unnecessary to to codify codify this this power power in in the the Crimes Crimes Act, Act, as as the the lack lack of of
to to be be able able to to use use force force against against children children to to protect protect them them from from harm harm or or to to carry carry out out normal normal
separates separates children children from from adults adults in in the the eyes eyes of of the the law. law. While While it it might might be be practical practical for for parents parents
other other groups groups in in society society with with respect respect to to basic basic physical physical integrity. integrity. The The fact fact that that s59 s59 exists exists at at all all
The The decision decision to to amend amend s59 s59 rather rather than than to to repeal repeal it it means means that that children children are are still still inferior inferior to to
continue continue under under New New Zealand Zealand law. law.
impossible impossible task, task, and and therefore therefore the the hitting hitting of of children, children, for for whatever whatever purpose, purpose, can can legitimately legitimately
child child from from engaging engaging in in offensive offensive or or disruptive disruptive behaviour? behaviour? Arguably, Arguably, this this will will be be a a near near
to to prove prove the the intention intention behind behind the the smack. smack. Was Was it it to to discipline discipline the the child, child, or or was was it it to to prevent prevent the the
for for the the purposes purposes of of correction. correction. Prosecution Prosecution for for smacking smacking rests rests the the on ability ability of of the the prosecutor prosecutor
14 14
regards regards to to from from protection assault. assault.
hypothetical hypothetical tests tests to to see see whether whether it it has has significantly significantly improved improved the the situation situation for for children children with with
original original purpose. purpose. In In chapter chapter four four I I will will put put the the Control Control Parental provision provision through through some some
will will look look at at the the shortcomings shortcomings of of the the Act, Act, particularly particularly the the ways ways in in which which it it failed failed to to meet meet its its
15 15
See See introduction, introduction, page page 10 10
16 16
physical physical assault, assault, despite despite the the abolishment abolishment of of the the defence defence of of domestic domestic discipline. discipline. There There is is still still
do do not not apply apply to to a a defined defined group group of of the the population population who who can can still still be be legally legally subjected subjected to to
rights. rights. human human The The New New Zealand Zealand defence defence of of Parental Parental Control Control means means these these that three three principles principles
human human dignity, dignity, right right to to physical physical integrity integrity and and equal equal protection protection under under the the law. law. These These are are
The The Universal Universal Declaration Declaration of of Human Human Rights Rights (1948) (1948) has has three three basic basic principles: principles: respect respect for for
different different reasons. reasons.
not not to to be be hit. hit. Under Under the the provision, provision, new children children can can be be still still hit hit their their by parents, parents, but but for for
Parental Parental Control Control defence defence has has not not improved improved the the situation situation significantly significantly with with regard regard to to the the right right
in society society in that that could could be be legally legally assaulted. assaulted. As As I I will will demonstrate demonstrate in in chapter chapter four, four, the the new new
infringed infringed upon upon children's children's basic basic human human rights rights because because it it effectively effectively defined defined them them as as a a group group
In In New New Zealand, Zealand, the the s59 s59 defence defence of of domestic domestic discipline, discipline, prior prior to to amendment, amendment, arguably arguably
1. 1. The The claim claim of of a a right right to to physical physical integrity. integrity.
society? society?
thesis thesis is is smacking. Do Do children children have have the the same same right right not not to to be be as as other other hit hit members members of of
16 16
situations situations that that do do not not amount amount to to discipline discipline or or correction. correction. However, However, the the central central theme theme of of this this
'Physical 'Physical integrity' integrity' has has a a number number of of facets, facets, including including restraint restraint and and the the application application of of force force in in
In In this this chapter, chapter, I I will will explore explore children's children's rights rights and and the the human human right right to to physical physical integrity. integrity.
Integrity. Integrity.
Chapter Chapter One: One: Children's Children's Rights Rights to to Physical Physical
16 16
Section Section 2 2 Crimes Crimes Act Act 1961. 1961. Section Section 196 196 is is the the offence offence of of common common assault. assault.
18 18
subjected subjected to to torture torture or or to to inhuman inhuman or or degrading degrading treatment treatment or or punishment." punishment."
chastisement chastisement defence defence under under UK UK law law breached breached article article 3 3 of of the the convention: convention: "No "No one one shall shall be be
A v v A United United Kingdom Kingdom [1998] [1998] 2 2 FLR FLR 959. 959. The The court court in in this this case case found found that that the the physical physical
17 17
repeal repeal s59 s59 without without eliminating eliminating a a parent's parent's ability ability to to hit hit their their child. child. Amendment Amendment options options
In In the the lead lead up up to to the repeal repeal the of of s59, s59, there there were were many many suggestions suggestions submissions submissions and on on how how to to
who who could could actually actually still still be be lawfully lawfully hit. hit.
smacking smacking was was a a common common parenting parenting tool, tool, which which meant meant there there remained remained one one group group in in society society
message message to to citizens citizens that that it it is is not not OK OK to to hit. hit. However, However, until until recently, recently, legally legally sanctioned sanctioned
another another person person constitutes constitutes assault. We We have have criminalised criminalised the the behaviour, behaviour, which which sends sends a a clear clear
18 18
generally generally acceptable acceptable hit hit to to other other regardless regardless people, of of the the reason. reason. In In New New Zealand, Zealand, hitting hitting
While While it it might might be be socially socially acceptable acceptable touch touch to to others others in in some some circumstances, circumstances, it it is is not not
The The right right to to physical physical integrity, integrity, specifically specifically the the right right not not to to be be hit hit is is well well established established by by law. law.
integrity." integrity."
protection, protection, in in the the form form of of effective effective deterrence, deterrence, against against serious serious breaches breaches of of personal personal
"Children "Children and and other other vulnerable vulnerable individuals, individuals, in in particular, particular, are are entitled entitled to to State State
protection protection from from rights rights violations, violations, rather rather than than less: less:
rights rights just just because because they they are are children. children. In In fact, fact, their their status status as as children children warrants warrants further further
articles articles of of the the European European Convention Convention of of Human Human Rights. Rights. They They are are not not excluded excluded from from human human
are are included included in in the the wider wider group group of of 'humans', 'humans', and and they they cannot cannot be be made made exempt exempt from from the the
The The European European Court Court of of Human Human Rights Rights v v A A in in United United Kingdom made made it it clear clear that that children children
17 17
therefore therefore do do not not qualify qualify for for the the associated associated human human rights? rights?
human human rights, rights, are are we we effectively effectively saying saying that that they they do do not not meet meet the the criteria criteria of of 'human' 'human' and and
children children the the same same protection protection under under the the law law as as adults. adults. By By denying denying a a defined defined group group basic basic
no no respect respect for for human human dignity dignity or or physical physical integrity integrity and and the the reform reform definitely definitely does does not not give give
17 17
http://www.maxim.org.nz/index.cfrn/policy_research/article?id=618 http://www.maxim.org.nz/index.cfrn/policy_research/article?id=618
a a Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bill, Bill, 1 1 February February 2006, 2006,
Maxim Maxim Institute, Institute, Maxim Maxim Institute Institute written written submission submission on on the the Crimes Crimes (Abolition (Abolition of of Force Force as as
21 21
Electoral Electoral Committee, Committee, 8 8 November November 2006 2006
Amendment: Amendment: Options Options for for Consideration, Consideration, Report Report of of the the Law Law Commission Commission
for for the the Justice Justice and and
which which was was considered considered as as "option "option 2" 2" by by the the law law commission. commission. Palmer, Palmer, G., G., Section Section 59 59
° °
For For example, example, the the proposed proposed amendment amendment to to section section 59 59 put put forward forward by by Chester Chester Burrows, Burrows,
2
below below the the shoulders, shoulders, or or smacking smacking without without an an implement implement for for example. example.
See See chapter chapter 2. 2. The The options options proposed proposed to to limit limit the the use use of of disciplinary disciplinary force force to to smacking smacking
19 19
s59. s59. It It has has failed failed to to completely completely criminalise criminalise hitting. hitting. Its Its nickname, nickname, the the 'anti-smacking 'anti-smacking
Control Control provision provision has has failed failed to to adequately adequately address address the the most most significant significant problem problem with with the the old old
law law which which technically technically deemed deemed other other use use of of parental parental force force as as assault. assault. However, However, the the Parental Parental
with with the the use use of of force force for for the the purposes purposes of of correction, correction, and and at at the the same same time time plug plug a a gap gap in in the the
The The Parental Parental Control Control provision, provision, which which eventually eventually replaced replaced the the old old s59, s59, ·was ·was meant meant to to do do away away
children children are are regarded regarded as as sub-human. sub-human.
humans humans in in society society who who enjoy enjoy the the human human right right not not to to be be hit, hit, and and therefore therefore in in this this regard, regard,
issue: issue: A A defence defence that that allows allows hitting, hitting, regardless regardless of of the the degree, degree, sets sets children children apart apart from from other other
achieved achieved their their purpose, purpose, however however it it still still does does not not address address the the fundamental fundamental physical physical integrity integrity
Legislating Legislating a a defence defence that that covers covers the the lightest lightest of of smacks smacks but but nothing nothing more more might might have have
themselves themselves from from child child abusers, abusers, and and manage manage to to distinguish distinguish smacking smacking from from abuse. child
21 21
slip slip through through the the 'reasonable 'reasonable force' force' test. Advocates Advocates of of the the 'gentle 'gentle smack' smack' are are to to able separate separate
20 20
but but rather rather to to eliminate eliminate the the possibility possibility more more that severe severe cases cases of of can can child-beating no no longer longer
defining defining the the use use of of force force that that can can be be used used against against a a child child is is not not to to promote promote children's children's rights, rights,
but but not not do do away away with, with, the the range range of of legitimate legitimate assaults assaults against against children. The The rationale rationale behind behind
19 19
generally generally sought sought to to define define "reasonable "reasonable force", force", so so as as to to make make smacking smacking safer, safer, and and to to narrow, narrow,
18 18
Supra Supra No. No. 23, 23, at at page page 13. 13.
25 25
Children Children and and Society, Society, page page 203. 203.
hit hit and and children children are are humans." humans." Hodgkin, Hodgkin, R. R. Why Why the the 'Gentle 'Gentle Smack' Smack' Should Should Go Go (1997) (1997) 11 11
"[t]he "[t]he issue issue of of smacking smacking is is unavoidably unavoidably a a question question of of rights. rights. It It is is a a human human right right not not to to be be
24 24
Square Square Press, Press, London, London, 1989, 1989, page page 12. 12.
Newell, Newell, P. P. Children Children are are People People Too. Too. The The case case against against physical physical punishment, punishment, Bedford Bedford
23 23
under under the the parental parental provision provision control includes includes hitting hitting or or smacking. smacking.
See See Chapter Chapter 4 4 for for an an analysis analysis of of situations situations where where the the legitimate legitimate force force used used against against a a child child
22 22
Parental Parental Control Control provision. provision.
bearers, bearers, with with the the right right not not to to be be hit, hit, while while our our criminal criminal code code undermines undermines this this right right with with the the
children's children's rights. rights. We, We, as as a a society, society, cannot cannot claim claim to to recognise recognise children children as as full full human human rights rights
reasonable reasonable force force defence defence for for parents parents means means that that there there will will forever forever be be a a glass glass ceiling ceiling for for
correction correction might might raise raise children's children's rights rights in in the the eyes eyes of of society. society. However, However, the the retention retention of of a a
In In the the New New Zealand Zealand context, context, the the abolishment abolishment of of the the use use of of force force for for the the purposes purposes of of
child child care care institutions."
25 25
punishment; punishment; and and most most recently, recently, away away from from allowing allowing children children to to be be hit hit in in schools schools and and
the the acceptance acceptance of of corporal corporal punishment punishment in in the the armed armed forces forces and and judicial judicial corporal corporal
acceptable acceptable the the hitting hitting of of wives, wives, servants servants and and apprentices; apprentices; more more recently, recently, away away from from
hitting hitting people people as as punishment. punishment. Thus Thus our our society society has has moved moved away away from from treating treating as as
gradual gradual acceptance acceptance of of the the wrongness, wrongness, and and also also the the ineffectiveness ineffectiveness and and dangers, dangers, of of
protection protection to to afforded them. them. Over Over the the years years in in the the UK UK there there has has been been a a growing growing yet yet
"One "One measure measure of of how how society society regards regards groups groups within within it it is is the the comparative comparative degree degree of of
hold hold them them in in our our esteem: esteem:
Peter Peter Newell Newell suggests suggests that that the the level level of of protection protection given given to to children children directly directly reflects reflects how how we we
that that sense, sense, children children are are seen seen as as sub-human.
24 24
yet yet managed managed
to to that that appreciate "hitting "hitting people people is is wrong, wrong, and and children children are are people people too". In In
23 23
Children Children are are still still the the only only people people in in society society who who can can be be legally legally hit. hit. As As a a society, society, we we have have not not
legislation', legislation', is is misleading, misleading, it it because has has not not banned banned smacking, smacking, it it has has merely merely re-labeled re-labeled it. 22 22 For all the effort, debate, blood, sweat and tears that went into abolishing hitting as a form of
punishment in New Zealand26 it is hypocritical that the end result is a new defence that still
allows hitting. Perhaps this was unintentional, an unfortunate by-product of bad drafting.
However, it is more likely that our new Parental Control provision was borne out of a reluctance to recognise children as people deserving of human rights. Instead of repealing s59
outright, the legislature bowed to public and political pressure to retain smacking, and opted
to create a defence of reasonable force, claiming that it was necessary to codify an empty area
of the law. Even smacking in its common sense (as a disciplinary practice) was not
completely removed under the "anti-smacking" legislation, because at the last minute, the
police discretion not to prosecute was affirmed within the words of the Act27 to "give parents
confidence that they will not be criminalised for lightly smacking their children."28 In fact, as
it stands, it will be very difficult for police to prosecute parents for disciplinary smacking,
because they will have to be able to sufficiently prove that the child was smacked for the
purposes of correction, and not for one of the four legitimate purposes in the new section
59(1).29 If a law is too difficult to enforce, then the contemplated behaviour really has not
been banned at all, and the point of the law is just to pay lip-service to the idea that children's
rights exist. 30
26 See Wood, B., Hassall, I., Hook., G, Unreasonable Force. New Zealand's journey towards banning the physical punishment of children, Save the Children New Zealand, 2008 for an overview of New Zealand's journey towards abolishing physical punishment, specifically the role of the media in fuelling the public debate. 27 See chapter 3, The Effect of Affirming Police Discretion. 28 Key, John, Some sense on smacking- at last! Newsletter: Keynotes No 9, http://johnkey.co.nz/index.php?/archives/101-NEWSLETTER-KeyNotes-No-9.html, May 2 2007. 29 See chapter 4. The analysis of the Parental Control provision shows that a disciplinary smack can easily be reclassified as legitimate hitting under s59(1). 30 See Cairns, L. "Participation with purpose" In Tisdall, E. K. M, Davis, J. M., Hill, M., &
19 2. Do children have the right to physical integrity?
Rex Adhar and James Allan31 are critical of the child's equal right to physical integrity
argument put forward by authors such as the Ritchies,32 Michael Freeman33 and Peter Newell, who contends:
"if children are to have the status they deserve, as individual people, it is their right to physical and person integrity- to protection from all forms of inter-personal violence - which must be upheld. This is not demanding extra protection, or special laws - merely the protection that the rest of us take for granted."34
Adhar and Allan suggest that there is no consistency in the children's rights arguments. They
contend that advocates for children's rights can conveniently claim that children are equal to
adults in some circumstances, but then highlight their incapacity in others:
"Children's rights advocates appear to turn on and off their paternalism as the situation suits. At times we hear that children are different from adults, that they need extra guidance and attention and even that they cannot be considered fully autonomous. Then, when it comes to smacking, we hear from them that children are identical to adults."35
They distinguish between smacking and violence, 36 and contend that smacking is legitimate if
everyone, including children, embraces it.
Prout, A. (Eds.), Children, Young People and Social Inclusion. Policy Press, Bristol, 2006. The fact that a mechanism exists to give children rights does not mean that children's participation rights are necessarily being promoted. Cairns suggests that instruments such as UNCROC have been adopted to give the impression that children have rights, but if in reality they are not observed then "it is reasonable to question the depth of the commitment to the human rights of children." (page 217). 31 Ahdar, R. and Allan, J., Taking Smacking Seriously: The case for Retaining the Legality of Parental Smacking in New Zealand [2001] New Zealand Law Review 1, 1-34 32 Ritchie, J. & J. Spare the Rod, George Alien and Unwin, Sydney, 1981. 33 Freeman, M. Children are Unbeatable (1999) 13 Children and Society, 130-141. 34 Newell, P. "Why we must stop hitting children" in Bainham, A., Pickford, R., & Pearl, D. (Eds.) Frontiers of Family Law Chichester, New York, 1995, page 245. 35 Supra, No. 31, page 31.
20
21 21
other other times times it it is is more more important important to to promote promote protection protection for for children. children. Henaghan, Henaghan, M. M. "New "New
The The articles articles in in UNCRC UNCRC recognize recognize that that sometimes sometimes autonomy autonomy for for children children is is paramount, paramount, and and
41 41
require require capacity capacity to to be be held. held.
due due to to their their immaturity, immaturity, but but this this does does not not preclude preclude them them from from basic basic human human rights rights that that do do not not
See See below, below, under under Children's Children's Rights. Rights. Children's Children's rights rights are are necessarily necessarily different different from from adults adults
40 40
Cambridge Cambridge University University Press, Press, Cambridge, Cambridge, 1989, 1989, page page 20. 20.
Mill, Mill, J. J. "On "On Liberty" Liberty" (1859) (1859) reprinted reprinted in in Collini, Collini, S. S. On On (Ed.) (Ed.) Liberty Liberty and and Other Other Essays, Essays,
39 39
University University Press, Press, Oxford, Oxford, 1984, 1984, 153-167. 153-167.
Dworkin, Dworkin, R. R. "Rights "Rights as as Trumps" Trumps" in in Waldron, Waldron, J. J. Theories Theories (Ed.) (Ed.) of of Rights, Rights, Oxford Oxford
38 38
139. 139.
banning banning the the physical physical punishment punishment of of children, children, Save Save the the Children Children New New Zealand, Zealand, 2008, 2008, page page
Wood, Wood, B., B., Hassall, Hassall, I., I., Hook., Hook., Unreasonable Unreasonable G, G, Force. Force. New New Zealand's Zealand's journey journey towards towards
37 37
hit hit (2008) (2008) Family Family 46 46 Court Court Review Review 1, 1, 11-36. 11-36.
the the hitting hitting (including (including smacking) smacking) of of children children as as child child abuse. abuse. Nicholson, Nicholson, Choose Choose to to hug hug A. A. not not
Hon. Hon. Alastair Alastair Nicholson Nicholson remarks remarks that that it it is is troubling troubling when when people people are are unable unable to to characterize characterize
36 36
different different approaches approaches to to be be taken. A A paternalistic paternalistic approach approach is is most most appropriate appropriate in in situations situations
41 41
one one set set policy policy or or to to way best best respect respect children's children's rights, rights, and and different different situations situations demand demand
contemplate contemplate them. However, However, this this does does not not preclude preclude them them from from having having rights. rights. There There is is not not
40 40
limited limited in in their their capacities, capacities, so so of of course course general general rights rights theories theories are are not not going going to to adequately adequately
major major children's children's rights rights theories, theories, and and therefore therefore is is too too simplistic. simplistic. Children, Children, by by definition, definition, are are
The The Adhar Adhar and and Allan Allan criticism criticism of of children's children's rights rights looks looks at at paternalism, paternalism, but but fails fails to to examine examine
mankind. mankind. "
39 39
in in silencing silencing that that one one person person than than he, he, if if he he had had the the power, power, would would be be in in silencing silencing
all all mankind mankind "If "If minus minus one one were were of of one one opinion, opinion, mankind mankind would would be be no no more more justified justified
illustrates illustrates this this point point with with reference reference to to the the right right to to free free speech: speech:
cannot cannot be be overridden overridden just just because because the the public public want want to to retain retain smacking. smacking. John John Stuart Stuart Mill Mill
:m :m
the the majority majority rights rights acts acts If If as as 'trumps' 'trumps' as as Ronald Ronald Dworkin would would suggest, suggest, this this right right
38 38
entitled entitled to to equal equal protection protection ...... Human Human rights rights are are universal universal and and are are not not subject subject to to the the whim whim of of
entitled entitled to to equal equal protection protection under under the the law. law. Children Children are are humans, humans, therefore therefore they they too too are are
However, However, as as Woods, Woods, Hassall Hassall and and Hook Hook state, state, "it "it is is a a fundamental fundamental right right that that all all humans humans are are
22 22
Aldershot, Aldershot, 1996. 1996.
(Ed.) (Ed.) Children's Children's Rights. Rights. A A Comparative Comparative Perspective, Perspective, Dartmouth Dartmouth Publishing Publishing Company Company Ltd, Ltd,
Zealand Zealand and and the the Convention Convention on on the the Rights Rights of of the the Child: Child: A A Lack Lack of of Balance" Balance" in in Freeman, Freeman, M. M.
smacking smacking debate, debate, age. age. it it is is
enjoy enjoy the the right right not not to to be be hit. hit. Capacity Capacity is is not not what what separates separates children children from from adults adults in in the the
because because other other groups groups in in society society who who lack lack capacity, capacity, such such as as mentally mentally handicapped handicapped persons, persons,
capacity. capacity. However, However, even even this this is is not not a a universal universal test test for for denying denying the the right right to to physical integrity, integrity, physical
often often distinguished distinguished from from other other forms forms of of discrimination discrimination the the on basis basis that that children children lack lack mental mental
discriminate discriminate against against children children on on the the basis basis their their of of age? age? Discrimination Discrimination against against children children is is
deny deny elderly elderly people people their their basic basic human human rights rights on on the the basis basis of of their their age, age, so so why why would would we we
black, black, because because that that would would qualify qualify as as gender gender or or race race discrimination. discrimination. Similarly, Similarly, we we would would not not
into into subcategories. subcategories. We We would would not not deny deny human human rights rights to to those those who who happen happen to to be be female female or or
subcategory, subcategory, just just like like other other human human characteristics characteristics such such as as gender gender and and race race further further define define us us
Children Children are are human human first first and and foremost, foremost, and and their their age age status status simply simply puts puts them them in in a a human human
prohibited, prohibited, and and no no one one may may drive drive while while intoxicated. intoxicated.
is is required required to to wear wear seat seat belts belts in in cars cars for for their their own own best best interests, interests, harmful harmful drugs drugs have have been been
·paternalistic ·paternalistic and and rights rights based based approaches approaches is is taken taken with with adults adults as as well. well. For For example, example, everyone everyone
his his incapacities. incapacities. This This blend blend of of rights rights theories theories is is not not restricted restricted to to children. children. A A mixture mixture of of
different different approach approach can can be be taken, taken, one one that that does does not not discriminate discriminate against against the the child child by by virtue virtue of of
example, example, feeding feeding and and clothing clothing an an infant. infant. In In other other situations, situations, where where rights rights in in are issue, issue, a a
where where the the child's child's limitations limitations clearly clearly prevent prevent them them from from acting acting in in their their own own best best interests, interests, for for
23 23
maximum maximum penalty penalty of of death. death.
In In Pakistan, Pakistan, adultery adultery is is a a crime crime under under the the Hudood Hudood Ordinance. Ordinance. The The Ordinance Ordinance sets sets a a
44 44
establish establish any any grounds grounds for for the the deprivation deprivation of of life, life, therefore therefore every every one one has has the the right right to to live. live.
and and are are consistent consistent with with the the principles principles of of fundamental fundamental justice. justice. Our Our current current law law does does not not
states states that that no no one one shall shall be be deprived deprived of of life life except except on on such such grounds grounds as as are are established established by by law law
for for assisted assisted suicide suicide or or euthanasia. euthanasia. Section Section 8 8 of of the the New New Zealand Zealand Bill Bill of of Rights Rights Act Act 1990 1990
The The New New Zealand Zealand justice justice system system does does not not use use capital capital punishment, punishment, and and there there is is no no provision provision
43 43
Archard, Archard, D. D. Children: Children: Rights Rights and and Childhood, Childhood, Routledge, Routledge, London, London, 1993, 1993, page page 58. 58.
42 42
Human Human Rights Rights (1948), the the (1948), International International Covenant Covenant on on Civil Civil and and Rights Rights Political (1966), the the (1966),
The The right right to to physical physical integrity integrity is is a a fundamental fundamental right, right, affirmed affirmed in in the the Universal Universal Declaration Declaration of of
her. her.
because because she she is is a a human human being, being, and and therefore therefore all all fundamental fundamental human human rights rights are are available available to to
and and not not even even because because we we take take a a different different stance stance on on adultery. adultery. The The woman woman has has the the right right to to life life
Zealand Zealand she she has has a a fundamental fundamental right right to to life. life. This This is is not not because because she she is is a a woman, woman, or or an an adult, adult,
example, example, some some cultures cultures demand demand that that a a woman woman be be put put to to death death for for adultery, but but in in New New
44 44
Furthermore, Furthermore, cultural cultural religious religious and differences differences do do not not affect affect this this fundamental fundamental right. right. For For
or or white. white. is is a a fundamental fundamental social social It It guarantee guarantee that that one one does does not not have have to to qualify qualify for. for.
people people in in New New Zealand, regardless regardless of of whether whether they they are are young young or or old, old, male male or or female, female, black black
43 43
The The right right to to life life is is a a fundamental fundamental human human right right that that is is widely widely accepted, accepted, and and applies applies to to all all
i) i) Fundamental human human Fundamental rights rights
rights. rights.
it it is is natural natural to to assume assume their their 'humanness' 'humanness' is is enough enough to to qualify qualify them them for for basic, basic, fundamental fundamental
capacities capacities necessary necessary for for the the possession possession of of rights." However, However, in in the context context the of of human human rights rights
42 42
"The "The young young are are denied denied rights rights because, because, being being young, young, they they are are presumed presumed to to lack lack some some
a) a) Human Human Rights. Rights.
24 24
University University Press, Press, New New Brunswick, Brunswick, 25-37. 25-37.
potentials" potentials" in in Pufall, Pufall, P.B., P.B., Unsworth, Unsworth, R.P. R.P. (Eds.) (Eds.) Rethinking Rethinking & & Childhood, Childhood, Rutgers Rutgers
James, James, A. A. "Understanding "Understanding childhood childhood from from an an interdisciplinary interdisciplinary perspective: perspective: Problems Problems and and
48 48
domestic domestic discipline discipline defence. defence. See See chapter chapter 2. 2.
The The United United Nations Nations Committee Committee on on the the Rights Rights of of the the Child Child also also criticized criticized New New Zealand's Zealand's
47 47
United United Nations Nations (2004) (2004) paragraph paragraph 7(e). 7(e).
59. 59. Conclusions Conclusions and and Recommendations Recommendations of of the the Committee Committee against against Torture: Torture: New New Zealand. Zealand.
Degrading Degrading Treatment Treatment or or Punishment Punishment recommended recommended that that New New Zealand Zealand repeal repeal the the old old section section
The The United United Nations Nations Committee Committee Against Against Torture Torture and and Other Other forms forms of of Cruel, Cruel, or or Inhuman
46 46
physical physical integrity. integrity.
and and degrading' degrading' are are strong, strong, however however they they match match other other international international documents documents that that promote promote
apply apply to to 'everyone' 'everyone' when when there there is is a a group group in in society society who who can can be be legally legally hit. hit. The The words words 'cruel 'cruel
degrading, degrading, or or disproportionately disproportionately severe severe treatment treatment or or punishment. punishment. Arguably, Arguably, this this does does not not
Section Section 9 9 states states that that everyone everyone has has the the right right not not to to be be subjected subjected to to torture torture or or to to cruel, cruel,
45 45
should should take take fundamental fundamental rights rights away away from from people people that that are are too too old, old, or or too too young. young. In In fact, fact, we we
discriminative, discriminative, (e.g. (e.g. right right to to vote) vote) but but fundamental fundamental rights rights should should not. not. seems seems absurd absurd that that we we It It
groups groups were were considered considered to to be be just just that: that: subordinate. subordinate. · · Arguably Arguably some some rights rights must must be be age age
slave) slave) and and status status (an (an employer employer could could chastise chastise his his employee) employee) because because all all of of these these subordinate subordinate
gender gender (a (a husband husband could could chastise chastise his his wife), wife), race race (a (a white white person person could could chastise chastise his his black black
or or class. class. In In the the context context of of chastisement, chastisement, physical we we used used to to discriminate discriminate on on the the basis basis of of
do do not not deprive deprive other other human human beings beings of of rights rights just just because because they they display display other other variables variables like like race race
combinations combinations of of these these variables, variables, but but they they are are still still humans. humans. Age Age is is just just another another variable. We We
48 48
human human variables variables such such as as gender, gender, class, class, ethnicity, ethnicity, age age and and mental mental capacity. capacity. All All humans humans have have
stage, stage, not not sub-human. sub-human. The The fact fact that that they they are are children children does does not not divorce divorce them them from from other other
Children Children are are humans humans in in the the first first instance, instance, and and sub-adults sub-adults because because of of their their developmental developmental
United United Nations Nations Convention Convention the the on Rights Rights of of the the Child Child (1989), to to name name a a few. few.
47 47
Other Other forms forms of of Cruel, Cruel, or or Inhuman Degrading Degrading Treatment Treatment or or Punishment Punishment (1984) and and the the
46 46
New New Zealand Zealand Bill Bill of of Rights Rights Act Act 1990, the the United United Nations Nations Convention Convention Against Against Torture Torture and and 45 45
25 25
[2002] [2002] New New Zealand Zealand Law Law Review Review 3, 3, 359-391. 359-391.
Breen, Breen, C., C., The The Corporal Corporal Punishment Punishment of of Children Children in in New New Zealand: Zealand: The The Case Case for for Abolition Abolition
49 49
humans humans with with the the following following characteristics: characteristics:
from from the the fact fact that that they they are are humans. humans. Elderly Elderly people people and and children children are are in in the the same same subset subset of of
they they are are at at a a different different developmental developmental stage stage to to most most adults, adults, but but that that still still does does not not take take away away
they they turn turn 80 80 and and appear appear to to have have lost lost the the ability ability to to function function like like a a rational rational adult. adult. Like Like children, children,
not not age age discriminate discriminate when when it it comes comes to to basic basic human human rights- we we do do not not hit hit elderly elderly people people when when
children, children, they they need need guidance guidance and and protection protection where where they they cannot cannot look look after after themselves. themselves. We We do do
Mentally Mentally handicapped handicapped persons persons and and some some elderly elderly are are unable unable to to function function as as an an adult. adult. Like Like
that that person person a needs needs an an adult adult mental mental capacity capacity to to deserve deserve the the right right not not to to be be hit. hit.
other other people people who who lack lack full full adult adult mental mental faculties? faculties? Surely Surely it it is is because because it it is is ridiculous ridiculous to to claim claim
to to physical physical integrity, integrity, because because others others who who lack lack capacity capacity enjoy enjoy this this right. Why Why do do we we not not hit hit
49 49
Mental Mental capacity capacity cannot cannot be be said said to to be be the the defining defining factor factor that that prevents prevents children children being being entitled entitled
that that person person to to be be hit. hit.
difference difference is is of of course course that that power power a of of attorney attorney cannot cannot hit hit an an old old person, person, or or give give consent consent for for
decisions decisions for for them them that that require require capacity, capacity, and and children children have have their their parents parents or or guardians. guardians. The The
same same decision-based decision-based rights. rights. Elderly Elderly people people might might assign assign power power a of of attorney attorney to to make make
mental mental capacity, capacity, and and therefore therefore require require different different levels levels of of protection protection and and cannot cannot exercise exercise the the
Children Children and and elderly people people elderly with with dementia dementia are are different different from from other other adults adults because because they they lack lack
ii) ii) Capacity Capacity and and age age discrimination. discrimination.
they they are are often often physically physically weak, weak, and and for for those those who who have have dementia, dementia, lack lack mental mental adult capacity. capacity.
do do not not take take the the right right to to bodily bodily integrity integrity away away from from the the elderly, elderly, even even though, though, like like children, children,
26 26
Supra, Supra, No. No. 37 37 page page 62 62
53 53
March March 2008 2008 from from http://www.hrc.co.nz/report/actionplan/Oforeword.html http://www.hrc.co.nz/report/actionplan/Oforeword.html
Human Human Rights Rights Commission, Commission, New New Zealand Zealand Action Action Plan Plan on on Human Human Rights, Rights, retrieved retrieved 4 4
52 52
Section Section 2l(l)(i) 2l(l)(i)
51 51
hitting hitting for for certain certain purposes. purposes.
See See chapters chapters 3 3 and and 4 4 for for an an explanation explanation of of how how the the Parental Parental Control Control provision provision still still allows allows
50 50
Human Human Rights which which "fully "fully recognises recognises children children as as human human beings beings entitled entitled to to rights." The The
52 52 53 53
1993. In In 2005 2005 the the Human Human Rights Rights Commission Commission released released the the New New Zealand Zealand Action Action Plan Plan on on
51 51
In In New New Zealand Zealand discrimination discrimination on on the the basis basis of of age age is is prohibited prohibited by by the the Human Human Rights Rights Act Act
else. else.
because because that that person person has has the the same same right right to to be be protected protected by by the the law law from from assault assault as as everyone everyone
handicapped handicapped person, person, but but in in this this case, case, a a guardian guardian who who hit hit him him would would have have no no such such safeguard, safeguard,
5° 5° bestows bestows these these special special powers powers to to parents. parents. I I could could equally equally be be describing describing a a mentally mentally
would would be be justified justified in in his his actions actions under under current current law, law, because because the the Parental Parental Control Control provision provision
gives gives them them a a smack. smack. I I could could be be describing describing a a two two year year old, old, in in which which case case the the guardian guardian (parent) (parent)
concepts concepts and and behaviours, and and behaviours, is is making making a a scene scene in in a a supermarket supermarket for for which which their their guardian guardian
Imagine Imagine a a person person who who is is physically physically small small and and weak, weak, cannot cannot fully fully comprehend comprehend adult adult language, language,
- both both are are humans. humans.
more more vulnerable. vulnerable.
- both both are are at at physical physical stages stages where where they they are are weaker weaker than than an an and and adult therefore therefore are are
- both both are are at at developmental developmental stages stages where where their their capacity capacity is is not not that that of of an an adult's. adult's.
27 27
1961). 1961). lnglis lnglis v v Police Police (1986) (1986) 2 2 CRNZ CRNZ 463 463
defence defence to to a a charge charge of of sexual sexual conduct conduct with with child child under under 12 12 for for example. example. (s132 (s132 Crimes Crimes Act Act
someone someone under under the the age age of of consent consent might might have have given given their their permission permission does does not not serve serve as as a a
Children Children are are deemed deemed unable unable to to consent consent to to sex sex or or sexual sexual acts, acts, the the therefore fact fact that that
58 58
Eg, Eg, for for participation participation in in research, research, refusing refusing medical medical treatment, treatment, etc. etc. Supra Supra No. No. 31. 31.
57 57
R v v R Brown Brown [1992] [1992] 2 2 All All ER ER 552; 552; R v v R Donovan Donovan [1934] [1934] 2 2 498 498 KB KB
56 56
A-G's A-G's Reference Reference (No (No 6 6 of of 1980) 1980) [1981] [1981] QB QB 715; 715; [1981] [1981] 2 2 All All ER ER 1057 1057 (CA) (CA)
55 55
Supra, Supra, No. No. 32 32 chapter chapter 2.4 2.4
54 54
with with the the more more drastic drastic inability inability to to have have physical physical integrity? integrity? Provisions Provisions like like Control Control Parental are are
smacking smacking advocates advocates conveniently conveniently ignore ignore their their inability inability to to consent consent to to being being hit, hit, and and replace replace it it
requisite requisite mental mental faculties faculties to to carry carry out out these these rights. rights. So So if if children children are are so so different, different, why why do do
different different to to adults. adults. We We do do not not give give them them the the right right to to vote vote or or drink drink because because they they lack lack the the
flawed flawed in in the the fact fact that that children children also also lack lack adult adult capacity capacity to to consent consent to to assault. assault. Children Children are are
that that rests rests on on the the notion notion that that children children are are not not equal equal to to adults adults because because they they lack lack adult adult capacity capacity is is
therefore therefore surely surely cannot cannot consent consent to to being being assaulted. assaulted. Consequently, Consequently, an an argument argument for for smacking smacking 5
8 8
In In circumstances circumstances some a a child child is is deemed deemed to to lack lack the the necessary necessary capacity capacity for for consent, consent,
57 57
law law values values bodily bodily integrity, integrity, even even when when it it infringes infringes on on individual individual interests. interests.
cannot cannot consent consent to to assault assault that that causes causes actual actual bodily bodily harm. harm. This This demonstrates demonstrates how how much much our our 5
6 6
having having their their physical physical integrity integrity invaded, invaded, however however this this consent consent can can only only extend extend so so far. far. One One 5
5 5
nature. nature. They They apply apply to to everyone, everyone, despite despite their individual individual their needs. needs. A A person person might might consent consent to to
The The right right to to bodily bodily integrity integrity is is a a fundamental fundamental right right and and fundamental fundamental rights rights general general are by by
iii) iii) Capacity Capacity and and consent consent
and and physical physical integrity."
54 54
report report recommend recommend the repeal repeal the of of the the old old s59, s59, in in "respect "respect for for children's children's rights rights to to human human dignity dignity enacted to get around this, because hitting children is the exception to the general rule that you can only hit those who consent to it.
b) Children's Rights.
Some rights for children must necessarily be different to those for adults, because children are different to adults. They are deemed to lack the mental capacity and maturity to exercise
certain rights, such as making the decision to marry, or to smoke cigarettes for example.
However none of the various general rights theories nor the theories specific to children's
rights necessarily deny children basic, fundamental human rights.
i) The Will Theory
The Will Theory of rights (also known as the 'choice theory') states that "the holder of a
legal right is normally permitted and empowered in law to choose whether or not on any
given occasion he should avail himself of his right by insisting on performance by another
party of the relevant duty."59 Will theorists argue that a rights holder has the ability to control
whether others must or must not act in particular ways, and there is no such thing as an
unwaivable right. According to this theory, rights can only be held by people who are capable
of waiving them, hence they cannot apply to children.60 Obviously our society does not
subscribe to this theory of rights when talking about fundamental rights, rather than political
rights for example. The right to life is unwaivable, and, as mentioned above, people other
59 MacCormick, N., "Children's Rights: A Test-Case for Theories of Rights" (1976) in Freeman, M. (Ed) Children's Rights Volume I, Aldershot, Ashgate Dartmouth, 2004, page 314. 6°Cruft, R. Rights: Beyond Interest Theory and Will Theory? (2004) 23 Law arid Philosophy, 347-397. Also see Hart, H. L. A. Are There Any Natural Rights? (1955) 64 Philosophical Review 2, page 181.
28
29 29
http://www http://www .radionz.co.nz/news/latest/20070726131 .radionz.co.nz/news/latest/20070726131 0/ 0/ green_mp green_mp _abandons_ _abandons_ voting_age_bill voting_age_bill
13 13 August August 2008 2008 from from
Radio Radio New New Zealand Zealand News, News, "Green "Green MP MP abandons abandons voting voting age age bill", bill", 26 26 July July 2007, 2007, Retrieved Retrieved
63 63
Section Section 12 12 New New Zealand Zealand Bill Bill of of Rights Rights Act Act 1990. 1990.
62 62
Prout, Prout, A. A. (Eds.), (Eds.), Children, Children, Young Young People People and and Social Social Inclusion. Inclusion. Policy Policy Press, Press, Bristol, Bristol, 2006. 2006.
"Participation "Participation with with purpose" purpose" In In Tisdall, Tisdall, E. E. K. K. M, M, Davis, Davis, J. J. M., M., Hill, Hill, M., M., & &
is is a a fundamental fundamental right, right, and and therefore therefore children children should should be be entitled entitled to to vote. vote. See See Cairns, Cairns, L. L.
Some Some children's children's rights rights theorists theorists argue argue that that the the right right to to participate participate and and have have a a political political voice voice
61 61
later later abandoned abandoned the the Bill, Bill, due due to to an an adverse adverse public public reaction.
63 63
Civics Civics Education Education and and Voting Voting Age Age Bill Bill which which would would lower lower the the voting voting age age to to 16. 16. However, However, she she
Green Green Party Party MP MP Sue Sue Bradford Bradford announced announced in in June June 2007 2007 that that she she intended intended introduce introduce to to her her
deemed deemed too too immature immature to to vote. vote. In In Austria Austria and and Brazil Brazil the the voting voting age age is is 16, 16, and and in in New New Zealand Zealand
"competent" "competent" category category for for this this reason. reason. This This is is not not to to say say that that children children under under 18 18 are are universally universally
to to assess assess every every voter voter individually. Elderly Elderly individually. people people with with dementia dementia are are included included in in the the
where where persons persons over over a a age age certain are are generally generally deemed deemed to to be be competent competent to to vote, vote, than than to to have have
somewhere somewhere in in the the interests interests of of consistency consistency and and application. application. It It is is a a far far simpler simpler electoral electoral system system
make make political political choices choices than than their their 18 18 year year old old counterparts, counterparts, the the letter letter of of the the law law must must be be set set
are are eligible eligible to to vote. vote. While While it it is is true true that that some some children children at at age age 17 17 might might be be better better equipped equipped to to
62 62
capacity capacity they they are are not not entitled entitled to to this right. this In In New New Zealand, Zealand, person person a must must be be 18 18 before before they they
61 61
Voting Voting is is a a right right that that requires requires capacity capacity to to exercise exercise or or waive, waive, and and because because children children lack lack this this
in in determining determining children's children's entitlements entitlements to to activities activities that that require require capacity, capacity, such such as as voting. voting.
While While the the will will theory theory is is unhelpful unhelpful in in determining determining fundamental fundamental rights rights entitlements, entitlements, it it is is useful useful
integrity. integrity.
than than children children who who lack lack mental mental capacity capacity are are not not denied denied the the fundamental fundamental right right to to physical physical
30 30
Supra Supra No No 59, 59, page page 311 311
68 68
Supra. Supra. No No 59 59
67 67
http://plato.stanford.edu/entries/rights/#2.2 http://plato.stanford.edu/entries/rights/#2.2
Stanford Stanford Encyclopaedia Encyclopaedia of of Philosophy, Philosophy, retrieved retrieved 26/6/08 26/6/08 from: from:
66 66
Waldron, Waldron, J. J. Rights Rights in in Conflict Conflict (1989) (1989) 99 99 Ethics Ethics 3, 3, page page 504. 504.
65 65
Raz, Raz, J. J. The The Morality Morality of of Freedom Freedom Oxford, Oxford, Clarendon, Clarendon, 1986 1986
64 64
to to withhold withhold this this right right from from them, them, therefore therefore they they have have this this right. right. Of Of course, course, there there are are smacking smacking
sense: sense: It It is is in in the the interests interests of of all all children children to to have have the the right right not not to to be be hit, hit, and and it it would would be be wrong wrong
to to be be hit' hit' as as the the right right 'T', 'T', and and 'children' 'children' as as group group 'C', 'C', then then this this statement statement makes makes perfect perfect
making making it it legally legally to to wrongful withhold withhold T T from from any any member member of of C." we we insert insert 'the 'the right right If If not not
68 68
C C on on the the supposition supposition that that T T is is good good for for every every member member of of C, C, and and the the law law has has the the effect effect of of
members members of of C, C, the the law law is is envisaged envisaged as as advancing advancing the the interests interests of of each each and and every every member member of of
would would still still exist. exist. Under Under the the interests interests theory, theory, "when "when a a right right toT toT is is conferred conferred by by law law on on all all
nurture, nurture, rather rather the the duty duty exists exists because because of of the the right. right. there there was was no no parent, parent, If If the the child's child's right right
nurture. nurture. He He concludes concludes this this that right right exists exists not not by by virtue virtue of of parent's parent's a duty duty to to provide provide care care and· and·
Neil Neil MacCormick discusses discusses this this theory theory with with reference reference to to children children and and the the right right to to care care and and
67 67
people people who who lack lack capacity capacity can can still still have have rights. rights.
theory theory because because it it recognises recognises that that some some rights rights are are unwaivable, unwaivable, and and it it also also recognises recognises that that
ownership ownership makes makes the the owner owner better better off." The The interest interest theory theory is is more more versatile versatile than than the the will will
66 66
holder's holder's interests. interests. An An owner owner has has a a right, right, "not "not because because owners owners have have choices, choices, but but because because the the
under under a a duty." The The purpose purpose of of a a right, right, according according to to this this theory, theory, is is to to further further the the right-
65 65
hers) hers) is is sufficiently sufficiently important important in in itself itself to to justify justify holding holding other other some person person or or persons persons to to be be
may may be be said said to to have have a a right right if if and and only only if if some some aspect aspect of of her her well-being well-being (some (some interest interest of of
The The interests interests theory theory of of rights was was developed developed by by Joseph Joseph Raz. Raz. "According "According to to Raz, Raz, a a person person
64 64
ii) ii) The The Interest Interest Theory Theory
31 31
111 111 Pediatrics, Pediatrics, 3, 3, ~41-652. ~41-652.
Kalb, Kalb, M., M., Loeber, Loeber, L. L. R. R. & & Child Child Disobedience Disobedience and and Non-Compliance: Non-Compliance: A A Review Review (2003) (2003)
74 74
539-579 539-579
Experiences: Experiences: A A meta-analytic meta-analytic and and theoretical theoretical review review (2003) (2003) 128 128 Psychological Psychological Bulletin, Bulletin, 4, 4,
Gershoff, Gershoff, E. E. T. T. Corporal Corporal Punishment Punishment by by Parents Parents and and Associated Associated Child Child Behaviours Behaviours and and
73 73
Ibid. Ibid. The The Effects Effects of of Physical Physical Punishment. Punishment.
72 72
2004 2004
Issues Issues Centre, Centre, University University of of Otago, Otago, and and the the Office Office of of the the Children's Children's Commissioner, Commissioner, June June
Smith, Smith, A. A. B. B. The The Discipline Discipline and and Guidance Guidance of of Children: Children: A A summary summary of of research, research, Children's Children's
71 71
and and research, research, 299-317, 299-317, Lawrence Lawrence Erlbaum Erlbaum
Socha, Socha, T., T., Stamp, Stamp, G. G. & & (editors) (editors) Parents, Parents, Children Children and and Communication: Communication: Frontiers Frontiers of of therapy therapy
Wilson, Wilson, S., S., Whipple, Whipple, E., E., & & 'Communication, 'Communication, discipline discipline and and physical physical child child abuse'. abuse'. In In
70 70
Universities Universities Law Law Review, Review, 370-388. 370-388.
Caldwell, Caldwell, J. J. Parental Parental Physical Physical L. L. Punishment Punishment and and the the Law Law (1989) (1989) 13 13 New New Zealand Zealand
69 69
lead lead to to an an increase increase in in non-compliance non-compliance as as well well as as other other behavioural behavioural problems.
74 74
the the obedience obedience to to be be ongoing, ongoing, which which is is not not usually usually the the case. case. In In fact, fact, physical physical punishment punishment can can
compliance. She She also also suggests suggests that that parents parents not not only only seek seek instant instant obedience, obedience, but but also also want want
73 73
punishment, punishment, and and found found that that it it was was only only associated associated with with one one desirable desirable behaviour: behaviour: immediate immediate
or or direction. Similarly, Similarly, Gershoff Gershoff carried carried out out a a meta-analysis meta-analysis of of 92 92 studies studies of of corporal corporal
72 72
parents parents are are aiming aiming for for short-term short-term effects, effects, in in the the form form of of immediate immediate compliance compliance with with a a request request
Anne Anne Smith Smith points points out out most most that studies studies agree agree when when that corporal corporal punishment punishment is is employed, employed,
brief brief A summary summary of of the the research research into into the the effects effects of of physical physical punishment. punishment.
introduced introduced in in 1979.
71 71
deaths deaths in in Sweden Sweden due due to to maltreatment, maltreatment, after after a a total total ban ban on on physical physical punishment punishment was was
punishment punishment and and child child abuse. Empirically Empirically this this is is supported supported the the by dramatic dramatic decrease decrease of of child child
70 70
support. support. Research Research seems seems to to show show there there that is is a a slippery slippery slope slope between between mild mild physical physical
69 69
good good for for children, children, however however this this is is a a highly highly contentious contentious position, position, little little with scientific scientific
advocates advocates that that claim claim that that the the right right not not to to be be hit hit is is not not good good for for children, children, i.e. i.e. that that smacking smacking is is
32 32
Ibid. Ibid.
76 76
Review, Review, 4, 4, 199-221 199-221
Parents: Parents: An An updated updated Literature Literature Review Review (2000) (2000) 3 3 Clinical Clinical Child Child and and Family Family Psychology Psychology
Larzelere, Larzelere, R. R. E. E. Child Child Outcomes Outcomes of of Non-Abusive Non-Abusive and and Customary Customary Physical Physical Punishment Punishment by by
75 75
circumstances circumstances where where physical physical punishment punishment may may or or may may not not be be effective. effective. Straus Straus points points to to
out') out') work work just just as as well, well, even even in in the the short short term, term, so so there there is is no no real real need need to to identify identify
abolishment abolishment of of all all physical physical punishment punishment suggest suggest that that alternative alternative methods methods (for (for example, example, 'time 'time
effective effective if if it it is is such such a a narrow narrow window window that that is is difficult difficult to to stay stay within? within? Advocates Advocates for for
question: question: is is there there really really much much point point in in defining defining situations situations when when corporal corporal punishment punishment is is
specific specific guidelines, guidelines, which which are are probably probably more more often often than than not not breached. breached. This This prompts prompts the the
acceptable. acceptable. However, However, the the area area that that Larzelere Larzelere has has defined defined is is intensely intensely restricted restricted by by very very
This This appears appears to to be be an an attempt attempt to to draw draw the the line, line, and and illustrate illustrate an an area area where where smacking smacking is is
-it -it is is motivated motivated by by 'concern 'concern for for the the child"'
76 76
-it -it is is done done privately; privately;
-it -it is is accompanied accompanied by by reasoning; reasoning;
-the -the age age of of the the children children is is from from two two to to six six years; years;
-the -the punisher punisher is is under under control control (i.e. (i.e. not not punishing punishing in in anger); anger);
"-Not "-Not too too severe; severe;
obedience: obedience:
following following guidelines, guidelines, corporal corporal punishment punishment is is acceptable acceptable and and effective effective for for immediate immediate
physical physical punishment punishment at at the the other other end end of of the the scale. scale. Larzelere Larzelere suggests suggests that that within within the the
75 75
for for achieving achieving short-term compliance, compliance, short-term and and that that studies find find otherwise otherwise have have focused focused on on severe severe
correlational correlational research. research. Larzelere Larzelere suggests suggests that that mild mild physical physical punishment punishment is is a a suitable suitable avenue avenue
criteria criteria for for the the studies studies were were incorrect, incorrect, the the and findings findings were were consequently consequently based on on based
Gershoff' Gershoff' s s analysis analysis has has been been criticised criticised by by several several researchers researchers who who believe believe the the inclusion inclusion
33 33
Ibid. Ibid.
80 80
Supra, Supra, No. No. 78. 78.
79 79
Psychological Psychological Association, Association, Washington, Washington, 2002 2002
C. C. J., J., (Eds.) (Eds.) Violence Violence against against children children in in the the Family Family and and the the Community, Community, American American
on on research research on on the the developmental developmental effects effects of of child child abuse" abuse" In In Tricket, Tricket, P. P. K., K., Schellenbach, Schellenbach, & &
Crittenden, Crittenden, P. P. M., M., "Dangerous "Dangerous Behaviour Behaviour and and Dangerous Dangerous Contexts: Contexts: a a 35 35 year year perspective perspective
78 78
CA, CA, 2004 2004
Punishment Punishment by by Parents, Parents, Cognitive Cognitive Development Development and and Crime, Crime, AltaMira AltaMira Press, Press, Walnut Walnut Creek, Creek,
Children: Children: A A Longitudinal Longitudinal Study" Study" In In Straus Straus M. M. A., A., (Ed.) (Ed.) The The Primordial Primordial Violence: Violence: Corporal Corporal
Straus, Straus, M. M. A., A., "Corporal "Corporal Punishment Punishment and and Academic Academic Achievement Achievement Scores Scores of of Young Young
77 77
unforeseen unforeseen by by the the punisher. Smith Smith says says long-term long-term effects effects may may include include aggression, aggression,
80 80
Research Research shows shows that that there there can can also also be be several several long-term long-term effects, effects, often often undesired undesired and and
Short-term Short-term effectiveness effectiveness is is not not the the only only concern concern for for those those advocating advocating a a ban ban on on smacking. smacking.
selected selected because because they they more more often often promote promote safety."
79 79
may may be be that that injury injury of of children children is is an an outcome outcome unfortunate of of evolved evolved processes processes
adapt adapt to to promote promote individual individual well-being well-being within within constraints constraints the of of specific specific contexts. contexts. It It
"Species "Species evolve evolve in in a a way way that that promote promote the the good good of of the the many, many, whereas whereas individuals individuals
dangerous dangerous neighbourhoods. neighbourhoods. There There is is also also an an evolutionary evolutionary spin spin off: off:
violence violence that that is is associated. associated. She She illustrates illustrates this this point point with with the the higher higher incidences incidences of of violence violence in in
mechanism, mechanism, in in that that parents parents are are cued cued to to dangerous dangerous situations, situations, and and children children learn learn from from the the
different different reasoning. reasoning. Crittenden Crittenden suggests suggests that that abusive abusive behaviour behaviour is is in in fact fact a a protection protection
information. information. is is This consistent consistent with with the the Larzelere's Larzelere's guidelines, guidelines, but but comes comes from from a a slightly slightly
explanation explanation of of consequences, consequences, the because because toddlers toddlers have have a a limited limited capacity capacity to to process process verbal verbal
and and the the intense intense anger anger and and fear fear of of the the mother, mother, but but will will not not remember remember a a gentle gentle telling telling off off or or
of of a a toddler toddler running running out out on on to to a a busy busy street, street, and and says says that that child child the will will remember remember a a spanking spanking
sometimes sometimes not not only only be be ineffective, ineffective, but but can can be be entirely entirely inappropriate. She She gives gives the the example example
78 78
On On the the other other side side of of the the debate, debate, Crittenden Crittenden argues argues that that non-physical non-physical punishment punishment can can
compliance. compliance.
77 77
studies studies where where non-physical non-physical alternatives alternatives were were just just as as effective effective at at achieving achieving immediate immediate
34 34
Directions Directions (2003) (2003) 23 23 Clinical Clinical Psychology Psychology Review, Review, 2, 2, 197-224 197-224
Benjet, Benjet, C., C., Kazdin, Kazdin, & & E. E. Spanking Spanking A. A. Children: Children: The The Controversies, Controversies, Findings Findings and and New New
82 82
Ibid. Ibid.
81 81
result result could could be be explained explained by by the the recency recency effect- the the participants participants were were 26 26 years years of of age age and and
ever ever received received was, was, most most of of them them reported reported that that it it was was non-physical. non-physical. The The authors authors admit admit that that the the
punishment punishment as as a a child child or or adolescent, adolescent, but but when when asked asked what what the the most most effective effective punishment punishment they they
physically physically punished. punished. Eighty Eighty per per cent cent of of the the participants participants reported reported receiving receiving physical physical
in in creating creating long long term term compliance, compliance, there there were were also also lasting lasting emotional emotional effects effects from from being being
punishment. punishment. The The study study concluded concluded that that not not only only was was non-physical non-physical punishment punishment more more effective effective
A A recent recent Dunedin Dunedin study study looked looked at at a a cohort cohort of of 26 26 year year olds olds and and the the lasting lasting effects effects of of physical physical
occurred occurred prior prior to to another.
82 82
baseline baseline point point is is set set in in time time in in a a longitudinal longitudinal study, study, and and it it can can be be shown shown that that one one event event
control control groups. groups. Benjet Benjet and and Kazdin Kazdin suggest suggest that that causality causality can can be be effectively effectively measured measured if if a a
disrupted disrupted with with confounding confounding variables, variables, and and there there cannot cannot be be randomly randomly assigned assigned children children or or
comes comes from from retrospective retrospective reports reports and and limited limited outcome outcome studies. studies. Furthermore, Furthermore, can can causality be be
empirical empirical evidence, evidence, and and much much of of what what is is known known about about the the effects effects of of physical physical discipline discipline
Naturally, Naturally, since since this this is is a a sensitive sensitive and and controversial controversial topic, topic, there there are are limitations limitations on on gathering gathering
internalisation. internalisation.
hand, hand, models models aggressive aggressive behaviour behaviour and and can can work work to to suppress suppress the the development development of of moral moral
positive positive parenting parenting which which helps helps children children internalise internalise rules. rules. Physical Physical punishment, punishment, on on the the other other
discipline discipline assertive threatens threatens secure secure attachment. attachment. Secure Secure attachment attachment comes comes from from warm, warm,
problems problems and and difficulty difficulty establishing establishing relationships. The The idea idea is is that that excessive excessive use use of of power power
81 81
behavioural behavioural problems, problems, delinquency, delinquency, cognitive cognitive and and intellectual intellectual development, development, mental mental health health
35 35
Medical Medical Journal161(7), Journal161(7), 821-822. 821-822.
Straus, Straus, M. M. Is Is it it Time Time to to Ban Ban A. A. Corporal Corporal Punishment Punishment of of Children? Children? Canadian Canadian (1999) (1999)
86
and and young young people people speak speak out out about about family family discipline, discipline, Save Save the the Children, Children, Wellington, Wellington, 2005. 2005.
Children's Children's Bureau/ Bureau/ Save Save the the Children, London, London, Children, 1998. 1998. See See also also Dobbs, Dobbs, Insights: Insights: T. T. Children Children
Willow, Willow, C., C., Hyder Hyder It It Hurts Hurts T. T. You You Inside: Inside: & & Children Children talking talking about about smacking, smacking, National National
85 85
upra. upra. No. No. 78. 78.
s s 84 84
The The 119 119 New New Zealand Zealand Medical Medical Journal, Journal, 1228. 1228.
parents' parents' use use of of physical physical punishment punishment and and other other disciplinary disciplinary measures measures during during childhood childhood (2006) (2006)
Millichamp, Millichamp, J., J., Martin, Martin, J., J., Langley, Langley, J. J. On On the the receiving receiving end: end: adults adults young describe describe their their
83 83
on on for for love love and and protection. protection.
86 86
due due to to suppression suppression of of childhood childhood anger anger about about being being hit hit by by the the adults adults whom whom they they are are dependent dependent
but but they they can can hit hit children. children. suggests suggests Straus that that mental mental health health problems problems can can arise arise later later in in life life
with with a a direction. From From a a child's child's perspective, perspective, it it is is confusing confusing that that adults adults cannot cannot hit hit each each other, other,
85 85
resentment, resentment, none none of of which which is is intended intended when when attempting attempting to to produce produce immediate immediate compliance compliance
Smacking Smacking brings brings about about an an array array of of emotions emotions within within children children including including sadness, sadness, hurt, hurt, fear fear and and
lasting lasting negative negative effects. effects.
punishment punishment in in an an interview interview became became emotionally emotionally distressed, distressed, which which further further indicates indicates that that it it has has
The The Dunedin Dunedin study study also also reported reported that that nearly nearly a a quarter quarter of of giving giving those accounts accounts of of physical physical
privilege privilege (for (for example example a a toy) toy) any any less less than than a a smack. smack.
to to their their limited limited verbal verbal capacity, but but this this is is not not to to say say that that they they would respond respond would to to a a loss loss of of
84 84
Crittenden's Crittenden's research research agrees. agrees. She She suggested suggested that that toddlers toddlers would would not not learn learn from from reasoning reasoning due due
late late childhood childhood or or adolescence. adolescence.
the the mind mind in in the the long long term. This This has has implications implications for for parents, parents, especially especially for for punishment punishment in in
83 83
non-physical non-physical punishment, punishment, such such as as privilege privilege loss, loss, has has a a more more pronounced pronounced effect effect and and sticks sticks in in
incidence incidence of of physical physical punishment. punishment. However, However, it it is is more more likely likely that that the the results results simply simply show show that that
therefore therefore more more likely likely to to recall recall events events in in their their adolescence, adolescence, a a time time when when there there was was a a lesser lesser
36 36
Section Section 59 59 Crimes Crimes Act Act 1961. 1961.
89 89
Holmes, Holmes, S., S., Sunstein, Sunstein, & & S. S. The The Costs Costs of of Rights, Rights, W.W. W.W. Norton, Norton, New New York, York, 1999. 1999.
88 88
Narveson, Narveson, J. J. The The Libertarian Libertarian Idea, Idea, Broadview, Broadview, Ontario, Ontario, 2001. 2001.
87 87
Some Some theorists theorists argue argue that that children, children, by by virtue virtue of of their their incapacity incapacity and and dependence, dependence, have have a a
any any burden burden onto onto anyone, anyone, and and does does not not belong belong exclusively exclusively to to people people who who have have adult adult capacity. capacity.
the the right right does does not not exist. exist. The The negative negative right right not not to to be be hit hit is is fundamental. fundamental. It It does does not not impose impose
place. place. first The The difficulty difficulty (or (or perceived perceived difficulty) difficulty) in in enforcing enforcing a a right right should should not not mean mean that that
The The right right to to enforcement enforcement is is a a peripheral peripheral issue issue to to whether whether the the right right not not to to be be hit hit exists exists in in the the
used used is is more more than than is is considered considered to to be be reasonable.
89 89
criminalise criminalise parental parental hitting hitting against against children children when when the the motive motive is is correction, correction, or or when when the the force force
positive positive action action to to respect respect an an adult's adult's negative negative right right not not to to be be hit, hit, but but it it has has only only undertaken undertaken to to
words, words, to to enforce enforce the the right right not not to to be be hit, hit, the the state state must must do do something. something. The The state state already already takes takes
The The right right not not to to be be hit hit only only becomes becomes a a positive positive right right when when enforcement enforcement is is required. In In other other
88 88
anything, anything, other other than than refrain refrain from from interfering interfering with with one one another. another.
Arguably, Arguably, negative negative rights rights are are easier easier to to respect, respect, because because they they do do not not require require anybody anybody to to do do
An An example example of of a a positive positive right right might might be be right right the to to receive receive state state health health care care or or education. education.
because because it it simply simply
requires requires that that no no one one interferes interferes with with right right the holder's holder's physical physical integrity.
87 87
entitles entitles the the right right holder holder to to be be free free from from interference. interference. The The right right not not to to be be hit hit is is a a negative negative right, right,
holder holder to to be be provided provided with with something, something, from from another another person person or or from from the the state. state. A A negative negative right right
Rights Rights are are sometimes sometimes described described as as 'positive' 'positive' or or 'negative'. 'negative'. A A positive positive right right entitles entitles the the right right
iii) iii) Positive Positive and and Negative Negative Rights Rights
37 37
Making, Making, Cambridge Cambridge University University Press, Press, Cambridge, Cambridge, 1998. 1998.
Buchanan, Buchanan, A., A., Brock, Brock, D. D. & & Deciding Deciding for for Others: Others: The The Ethics Ethics of of Surrogate Surrogate Decision Decision
96 96
Potion, Potion, N. N. Paternalism Paternalism (1979) (1979) 89 89 Ethics Ethics 2, 2, 191-198. 191-198.
95 95
Supra. Supra. No. No. 31, 31, page page 31 31
94 94
Section Section 151 151 Crimes Crimes Act Act 1961. 1961.
93 93
Care Care of of Children Children Act Act 2004 2004
92 92
See See chapter chapter 2. 2.
91 91
rooted rooted in in dignity. dignity.
protection protection in in the the corporal corporal punishment punishment context context in in America. America. The The author author claims claims that that this this right right is is
Development Development Law Law Journal, Journal, 1-50 1-50 for for a a comprehensive comprehensive analysis analysis of of a a child's child's positive positive right right to to
See See Tamar, Tamar, E. E. A A positive positive right right to to protection protection for for children children (2004) (2004) 7 7 Yale Yale Human Human Rights Rights and and
90 90
of of thought thought is is that that of of Rawls: Rawls:
many many different different ideas ideas about about what what constitutes constitutes the the best best outcome outcome for for the the child, child, but but a a popular popular line line
taken taken on on behalf behalf of of a a child child is is to to done maximise maximise the the best best outcomes outcomes for for that that child. There There are are
96 96
The The welfare welfare principle, principle, or or the the principle principle of of 'best 'best interests' interests' for for children, children, requires requires that that any any action action
a a car car is is an an example example of of paternalism. paternalism.
not not just just apply apply to to people people who who lack lack capacity. capacity. The The requirement requirement that that everybody everybody wear wear a a seatbelt seatbelt in in
or or protected protected from from harm harm if if decisions decisions are are made made for for them. However, However, paternalistic paternalistic conditions conditions do do
95 95
parent) parent) can can override override a a person's person's autonomy autonomy or or free free will will because because the the person person would would be be better better off off
of of paternalism paternalism as as Adhar Adhar and and Allan Allan point point out. out. Paternalism Paternalism means means that that the the state state (or (or perhaps perhaps a a
94 94
Some Some entitlements entitlements for for children children are are given given to to them them in in their their 'best 'best interests', interests', which which is is an an example example
iv) iv) Best Best Interests Interests and and Paternalism. Paternalism.
mandatory mandatory duty duty for for parents parents or or guardians guardians to to provide provide the the necessaries necessaries of of life.
93 93
our our domestic domestic law law in in guardianship guardianship provisions and and in in the the criminal criminal code, code, which which sets sets out out a a
92 92
are are not not available available to to other other citizens citizens who who are are capable capable of of caring caring for for themselves. themselves. We We see see this this in in
UNCRC. Vulnerability Vulnerability and and dependence dependence means means that that children children have have special special safeguards safeguards that that
91 91
greater greater claim claim to to the the positive positive right right of of protection protection than than adults. This This is is affirmed affirmed in in article article 19 19 of of 90 90
38 38
159-171. 159-171.
Herring, Herring, J. J. Farewell Farewell Welfare? Welfare? (2005) (2005) 27 27 Journal Journal of of Social Social Welfare Welfare and and Family Family Law Law 2, 2,
100 100
jurisdiction. jurisdiction.
that that the the old old Domestic Domestic Discipline Discipline provision provision was was at at odds odds with with New New Zealand's Zealand's family family law law
Fisher Fisher J J in in Sharma Sharma v v Police Police High High Court Court Auckland Auckland A168/02, A168/02, 7 7 February February 2003 2003 pointed pointed out out
99 99
Law Law and and the the Family Family 52, 52, page page 69 69
Freeman, Freeman, M., M., 'Taking 'Taking Children's Children's rights rights more more seriously seriously (1992) (1992) 6 6 International International Journal Journal of of
98 98
Rawls, Rawls, J. J. A A Theory Theory of of Justice, Justice, Revised Revised Edition, Edition, Oxford Oxford University University Press, Press, Oxford, Oxford, 1999. 1999.
97 97
and and they they have have a a right right not not to to be be hit, hit, therefore therefore there there is is not not a a problem. problem. However, However, difficulty difficulty can can
rights.
In In the the context context of of smacking smacking it it is is arguably arguably in in the the best best interests interests of of a a child child not not to to be be hit hit
100 100
Most Most of of the the time, time, what what is is in in the the best best interests interests of of a a child child will will be be in in line line with with the the child's child's
about about children.
99 99
'primary 'primary consideration' consideration' and and instead instead makes makes it it a a paramount paramount consideration consideration in in decisions decisions made made
Section Section 4 4 of of the the Care Care of of Children Children Act Act 2004 2004 goes goes one one step step further further than than making making best best interests interests a a
best best interests interests of of the the child child shall shall be be primary primary a consideration." consideration."
welfare welfare institutions, institutions, courts courts of of law, law, administrative administrative authorities authorities or or legislative legislative bodies, bodies, the the
"In "In all all actions actions concerning concerning children, children, whether whether undertaken undertaken by by public public or or private private social social
welfare welfare primary primary a consideration: consideration:
The The principle principle welfare is is well well accepted accepted in in our our society. society. Article Article 3 3 of of UNCRC UNCRC makes makes the the child's child's
respect respect children's children's
rights rights while while at at the the same same time time protecting protecting them them from from harm.
98 98
suggests suggests that that we we need need to to balance balance nurture nurture with with self-determination, self-determination, and and develop develop laws laws that that
children's children's rights. rights. Micheal Micheal Freeman's Freeman's theory theory of of 'liberal 'liberal paternalism' paternalism' best best outlines outlines this. this. He He
The The idea idea of of welfare, welfare, or or 'best 'best interests' interests' is is a a common common theme theme in in discourse discourse surrounding surrounding
themselves themselves if if they they
were were at at the the age age of of reason reason and and deciding deciding rationally.'
97 97
'We 'We must must choose choose for for others others as as we we have have reason reason to to believe believe they they would would choose choose for for
39 39
Supra. Supra. No. No. 98 98
107 107
eds. eds. Rutgers Rutgers Press Press 2004. 2004.
Woodhouse, Woodhouse, B., B., "Re-visioning "Re-visioning Rights Rights for for Children" Children" in in Rethinking Rethinking Childhood, Childhood, Pufall Pufall et et al, al,
106 106
http://www http://www .fww .fww .org/articles/congres .org/articles/congres 1/amorita.htm. 1/amorita.htm.
Culture-Comparative Culture-Comparative Analysis, Analysis, retrieved retrieved 16/3/07 16/3/07 from from
Morita, Morita, A. A. Family Family Dissolution Dissolution and and the the Concept Concept of of Children's Children's Rights: Rights: A A Historical Historical and and
105 105
York, York, 1988. 1988.
Dworkin, Dworkin, G. G. The The Theory Theory and and Practice Practice of of Autonomy, Autonomy, Cambridge Cambridge University University Press, Press, New New
104 104
Supra. Supra. No. No. 66 66
103 103
See See below below for for a a potential potential autonomy autonomy and and best best interests interests conflict conflict in in the the smacking smacking debate. debate.
102 102
determinism determinism (1994) (1994) 8 8 International International Journal Journal of of Law Law and and the the Family, Family, 42-63. 42-63.
Eekelaar, Eekelaar, J. J. The The interests interests of of the the child child and and the the child's child's wishes: wishes: the the role role of of dynamic dynamic self
101 101
relevant relevant in in discourses discourses surrounding surrounding the the child's child's right right to to participate participate in in decisions decisions that that affect affect
acknowledging acknowledging their their vulnerabilities vulnerabilities and and protecting protecting them them from from harm. This This is is especially especially
107 107
possible possible to to acknowledge acknowledge that that a a child child has has developing developing autonomy while while at at the the same same time time
106 106
autonomy autonomy does does not not have have to to mean mean giving giving them them full full adult adult rights rights and and responsibilities. responsibilities. is is It It
them them causes causes a a breakdown breakdown in in the the family institution. family However, However, respecting respecting a a child's child's
105 105
theorists theorists argue argue that that children children cannot cannot have have full full autonomy, autonomy, and and any any attempt attempt to to bestow bestow it it upon upon
own own
choices, choices, therefore therefore people people who who lack lack capacity capacity necessarily lack lack necessarily full full autonomy. Some Some
104 104
is is to to have have the the ability ability to to decide decide matters matters for for oneself, oneself, and and to to bear bear the the responsibility responsibility for for one's one's
own own and and
not not the the product product of of manipulative manipulative or or distorting distorting external external forces." To To have have autonomy autonomy
103 103
one's one's own own person, person, to to live live one's one's life life according according to to reasons reasons and and motives motives that that are are taken taken as as one's one's
"Individual "Individual autonomy autonomy is is an an idea idea that that is is generally generally understood understood to to refer refer to to the the capacity capacity to to be be
v)Autonomy v)Autonomy
something something that that
harms harms them, them, such such as as refuse refuse to to undergo undergo a a medical medical procedure.
101 101 102 102
arise arise when when the the right right is is the the autonomy autonomy to to make make decisions, decisions, for for example example when when a a child child wants wants to to do do
40 40
Rights Rights 6, 6, page page 440. 440.
° °
Freeman, Freeman, M., M., The The Sociology Sociology of of Childhood Childhood (1998) (1998) The The International International Journal Journal of of Children's Children's
11
Science, Science, Morality Morality and and Feminist Feminist Theory Theory (Calgary, (Calgary, University University of of Calgary Calgary Press, Press, 1987)." 1987)."
"For "For example, example, V. V. Held, Held, 'A 'A Non Non Contractual Contractual Society' Society' in in M. M. Hanen Hanen and and K K Neilson Neilson (eds.), (eds.),
109 109
Children's Children's Rights, Rights, 149-170. 149-170.
children's children's rights rights and and decision decision making making in in England England (1999) (1999) 7 7 The The International International Journal Journal of of
Morrow, Morrow, V. V. "We "We are are people people too": too": Children's Children's and and young young people's people's perspectives perspectives on on
108 108
demand demand anything anything from from anyone, anyone, therefore therefore are are easier easier to to respect. respect. children children If If can can hold hold positive positive
it it requires requires others others to to include include the the and and child facilitate facilitate his his or or her her views. views. Negative Negative rights rights do do not not
The The right right to to participate participate in in decision decision making making that that Freeman Freeman mentions mentions is is positive positive a right, right, because because
rights rights in in decision-making decision-making to to those those who who are are dependent.',]
10 10
also also possible, possible, as as is is argued argued within within feminism, feminism, to to accord accord respect respect and and participation participation
109 109
would would as as much much as as possible possible give give children children the the opportunity opportunity to to be be independent. independent. But But it it is is
human human condition. condition. The The United United Nations Nations Convention, Convention, using using largely largely an an autonomy autonomy model, model,
condition condition that that person person a be be independent, independent, totally totally autonomous autonomous ...... Dependency Dependency is is a a basic basic
embedded embedded that that assumption moral moral agency agency and and citizenship citizenship rights rights require require as as pre a
important important contribution contribution of of feminist feminist moral moral theory theory has has been been to to the the question firmly firmly
"Dependency "Dependency should should not not be be a a reason reason to to be be deprived deprived of of choice choice and and respect. respect. An An
feminist feminist theory: theory:
the the argument argument for for children children holding holding rights rights despite despite their their inherent inherent dependency dependency comes comes from from
rights, rights, especially especially rights rights that that do do not not require require full full adult adult capacity. capacity. Michael Michael Freeman Freeman suggests suggests that that
handicaps, handicaps, they they are are merely merely human human variables variables and and should should not not preclude preclude person person a from from holding holding
vulnerability vulnerability and and dependency. dependency. However, However, none none of of these these things things should should be be considered considered
discussion discussion of of rights rights for for children children must must necessarily necessarily take take into into account account children's children's immaturity, immaturity,
Children Children are are different different to to adults adults with with respect respect to to their their capacities capacities and and capabilites, capabilites, therefore therefore
vi) vi) Needs Needs based based rights rights and and dignity dignity based based rights rights
be be held, held, such such as as the the right right not not to to be be hit. hit.
them. However However it it is is not not so so important important when when discussing discussing rights rights that that do do not not require require capacity capacity to to 108 108
41 41
Ibid, Ibid, page page 234. 234.
113 113
Ibid, Ibid, page page 233. 233.
112 112
Supra. Supra. No. No. 106 106
111 111
they they can can develop develop sufficiently sufficiently to to meet meet their their own own needs, needs, they they also also have have a a right right to to be be protected protected
protection protection however. however. Just Just as as a a child child has has a a right right to to goods goods and and services services to to meet meet their their until until needs
and and belongs belongs to to everyone. everyone. A A child's child's dependence dependence might might invoke invoke a a needs-based needs-based right right to to
require require us us to to do do anything anything special special in in this this area. area. The The right right not not to to be be hit hit is is a a dignity-based dignity-based right, right,
The The right right not not to to be be hit hit is is not not a a needs-based needs-based right right because because children's children's dependence dependence does does not not
or or to to children."
113 113
focuses focuses exclusively exclusively on on one one or or the the other other will will be be incomplete, incomplete, whether whether applied applied to to adults adults
dependence dependence and and autonomy autonomy are are two two sides sides of of the the same same coin. coin. A A scheme scheme of of rights rights that that
involves involves integrating integrating children's children's needs needs with with their their capacities capacities and and acknowledging acknowledging that that
as as their their on potential potential for for autonomy autonomy ...... Thinking Thinking realistically realistically about about children's children's rights rights
despite despite their their lack lack of of capacity, capacity, do do have have rights rights based based on on their their present present humanity humanity as as well well
based based rights rights are are fully fully present present at at birth. birth. Dignity-based Dignity-based rights rights remind remind us us that that children, children,
"[c]hildren's "[c]hildren's ability ability to to reason reason and and understand understand evolves evolves over over time, time, but but their their dignity
discourses discourses because because it it highlights highlights how how some some rights rights apply apply in in some some situations situations and and not not in in others: others:
simple, simple, and and applies applies to to everyone, everyone, not not just just children, children, but but is is especially especially useful useful in in children's children's rights rights
develop develop
into into autonomous autonomous adults adults and and productive productive citizens." This This formulation formulation of of rights rights is is very very
112 112
medical medical care, care, shelter shelter and and other other goods goods without without which which children children cannot cannot survive survive let let alone alone
Children's Children's needs-based needs-based rights rights "would "would include include the the positive positive right right to to nurture, nurture, education, education, food, food,
not not require require capacity capacity to to be be held held are are as as known 'dignity-based' 'dignity-based' rights, rights, and and belong belong to to everyone. everyone.
dependence dependence reflect and and autonomy: autonomy: needs-based needs-based rights rights and and dignity-based dignity-based rights. rights. Rights Rights that that do do
Barbara Barbara Bennet Bennet Woodhouse suggests suggests that that rights rights can can be be divided divided into into two two categories categories to to
111 111
a a negative negative right, right, and and one one that that can can be be held held by by children, children, despite despite the the fact fact that that they they are are dependent. dependent.
rights rights and and still still be be dependent, dependent, they they can can definitely definitely hold hold negative negative rights. rights. The The right right not not to to be be hit hit is is
42 42
the the use use of of physical physical punishment punishment as as inconsistent inconsistent with with UNCRC. UNCRC.
Article Article 19. 19. See See chapter chapter 2 2 for for an an analysis analysis of of how how the the UN UN Committee Committee specifically specifically proclaims proclaims
116 116
Volume Volume 1, 1, pages pages 393-394. 393-394.
Brown Brown (ed) (ed) Shorter Shorter Oxford Oxford English English Dictionary Dictionary (5th (5th Edition, Edition, Oxford Oxford University University Press, Press, 2002) 2002)
to to puberty. puberty.
The The stage stage or or stage stage of of life life of of a a child; child; the the time time during during which which one one is is a a child; child; the the time time from from birth birth
'childhood': 'childhood':
4. 4. A A pupil pupil at at school/ school/
child, child, esp. esp. a a person person of of immature immature experience experience or or judgement. judgement.
3. 3. A A person person who who has has (or (or is is considered considered to to have) have) the the character, character, manner, manner, pr pr attainments attainments of of a a
2. 2. A A boy boy or or girl. girl. .. .. a a youth youth approaching approaching on on or or entering entering on on manhood. manhood.
1. 1. a a foetus; foetus; an an infant infant
The The relevant relevant definitions definitions dictionary 'child' 'child' of of and and 'childhood' 'childhood' are: are:
115 115
Supra, Supra, No. No. 100. 100.
114 114
away away the the ability ability to to hit hit a a child child is is not not impinging impinging on on a a parent's parent's right right because because this this right right never never
promote promote children's children's welfare, welfare, not not to to undermine undermine adults' adults' ability ability to to care care for for the the children. children. Taking Taking
children. children. In In fact, fact, it it applies applies especially especially to to children. children. The The rights rights set set out out in in UNCRC UNCRC are are there there to to
not not to to be be physically physically assaulted assaulted is is human human a a right, right, and and applies applies to to all all people people equally, equally, even even
protection". protection".
Physical Physical punishment punishment is is contrary contrary to to the the articles articles of of UNCRC because because the the right right
116 116
immaturity" immaturity" of of children, children, they they need need "special "special safe safe guards guards and and care care including including appropriate appropriate legal legal
they they are are immature immature and and dependent. dependent. In In the the preamble preamble it it says, says, "due "due to to the the physical physical and and mental mental
that that children children need need extra extra rights rights over over and and above above their their basic basic human human rights, rights, because because of of the the fact fact
yet. The The United United Nations Nations Convention Convention on on the the Rights Rights of of the the Child Child (1989) (1989) (UNCRC) (UNCRC) declares declares
115 115
By By definition, definition, children children are are children children because because they they have have not not developed developed fully fully into into adult adult humans humans
child's child's right right
not not to to be be hit hit is is stronger stronger than than an an adult's, adult's, because because the the need need is is stronger.
114 114
from from hitting hitting until until they they reach reach a a where where stage they they can can protect protect themselves. themselves. In In that that sense, sense, a a
43 43
See See chapter chapter 2. 2.
120 120
Supra. Supra. No. No. 37, 37, page page 56 56
119 119
http://news.bbc.co.uk/llhi/uk/3015226.stm http://news.bbc.co.uk/llhi/uk/3015226.stm
'Pressure 'Pressure grows grows over over smacking smacking law', law', BBC BBC news, news,
118 118
Maidenhead, Maidenhead, 2004, 2004, page page 137. 137.
Kehily, Kehily, M. M. J. J. (Ed.) (Ed.) An An Introduction Introduction to to Childhood Childhood Studies, Studies, Open Open University University Press, Press,
Stainton Stainton Rogers, Rogers, W. W. "Promoting "Promoting better better childhoods: childhoods: constructions constructions of of child child concern" concern" in in
117 117
Discipline: Discipline:
creates creates a a legal legal privilege. privilege. Caldwell Caldwell best best describes describes this, this, with with reference reference to to the the old old s59, s59, Domestic Domestic
Parents Parents do do not not have have the the right right to to hit hit their their children, children, however however the the Parental Parental Control Control provision provision
this this article article does does not not the the open door door for for the the child's child's
right right to to physical physical integrity integrity to to be be invaded.
120 120
that that guardians guardians give give to to their their children, children, however however the the Committee Committee has has unequivocally unequivocally stated stated that that
Article Article 5 5 of of UNCRC UNCRC recognises recognises that that State State parties parties should should respect respect the the guidance guidance and and direction direction
they they feel feel that that the the criminal criminal prosecution prosecution should should be be left left for for cases cases of of serious serious assault. assault.
prosecuted prosecuted for for smacking smacking their their children. children. To To some, some, this this seems seems outrageous outrageous and and overzealous, overzealous, and and
autonomy autonomy and and authority. Banning Banning physical physical punishment punishment would would that that mean parents parents could could be be
119 119
"imposition "imposition of of children's children's rights rights upon upon families families through through legislation legislation would would compromise compromise parental parental
that that in in the the lead lead up up to to the the amendment amendment of of s59 s59 in in New New Zealand, Zealand, parents parents were were worried worried that that the the
into into parents' parents' legitimate legitimate rights rights and and duties." Similarly, Similarly, Woods, Woods, Hassell Hassell and and Hook Hook suggest suggest
118 118
Secretary Secretary Liam Liam Fox Fox said: said: "Outlawing "Outlawing smacking smacking would would be be an an outrageous outrageous intrusion intrusion by by the the state state
way way they they see see fit. fit. In In 2003 2003 this this was was a a hot hot topic topic in in the the UK, UK, with with a a proposed proposed law law change. change. Health Health
To To give give children children rights rights could could potentially potentially impact impact on on the the rights rights of of parents parents to to raise raise children children the the
vii) vii) Is Is there there a a parental parental right right to to hit hit a a child? child?
"essential "essential counter counter to to the the misuse misuse of of adult adult power."
117 117
existed. existed. Rather, Rather, by by propping propping up up children's children's entitlements entitlements to to protection, protection, UNCRC UNCRC acts acts as as an an
44 44
12. 12.
Hall, Hall, M. M. Child Child Abuse Abuse vs. vs. Domestic Domestic Discipline Discipline (1998) (1998) Youth Youth Law Law Review, Review, November, November, 10-
128 128
child's child's health health is is permanently permanently injured, injured, the the parent parent faces faces imprisonment imprisonment of of up up to to 7 7 years. years.
they they fail fail in in their their duty duty to to the the extent extent that that the the child child dies, dies, the the child's child's life life is is endangered endangered or or the the
Arguably, Arguably, if if a a parent parent has has a a duty duty not not to to hit, hit, then they they then must must not not hit hit to to abide abide by by this this section. section. If If
A A parent's parent's duty duty provide provide to necessaries necessaries is is codified codified in in the the Crimes Crimes Act Act 1961, 1961, section section 152. 152.
127 127
[1986] [1986] AC AC 112 112 at at 170. 170.
toward toward the the child." child." Lord Lord Fraser Fraser Gillick Gillick in in v v West West Norfolk Norfolk and and Wisbench Wisbench Health Health Authority Authority
the the child child and and they they are are justified justified only only insofar insofar as as they enable enable they the the parent parent to to perform perform his his duties duties
"parental "parental rights rights to to control control a a child child do do not not exist exist for for the the parent. parent. They They exist exist for for the the benefit benefit of of
126 126
J. J. Lock Lock on on Parental Parental Power Power (1989) (1989) 15 15 Population Population and and Development Development Review Review 4, 4, 749-757. 749-757.
children's children's rights. rights. Instead, Instead, he he emphasizes emphasizes the the duties duties that that children children have have to to their their parents. parents. Locke, Locke,
John John Locke Locke has has a a vastly vastly different different approach, approach, which which contradicts contradicts the the modern modern theory theory of of
125 125
Ibid. Ibid.
124 124
Supra. No. No. Supra. 69, 69, page page 372 372
123 123
Ibid. Ibid. page page 125. 125.
122 122
Juridicial Juridicial Review Review 124 124 at at 125." 125."
"See "See the the comments comments by by Wallington, Wallington, "Corporal "Corporal Punishment Punishment in in Schools" Schools" 1972 1972 N.S. N.S. 17 17
121 121
not not to to be be abused."
128 128
Parents Parents do do not not own own their their children, children, and and "guardianship "guardianship does does not not override override an an individual's individual's right right
parent's parent's duty duty to to provide provide that that
still still exists, exists, and and this this means means they they now now have have a a not not duty to to hit.
127 127
dangers dangers of of hitting hitting are are known, known, the the concept concept of of what what is is good good for for a a child child has has changed. changed. The The
entitlement to to a a good good upbringing, upbringing, not not from from a a parent's parent's right right to to hit.
But But now, now, since since the the
125 125 126 126
chastising chastising children children was was part part of of a a parent's parent's duty. The The duty duty comes comes from from the the child's child's
124 124
of of hitting hitting children children were were known, known, it it may may have have been been possible possible to to conclude conclude that that physically physically
If If anything, anything, a a parent parent has has a a duty duty not not to to hit hit their their child. child. In In the the past, past, before before the the damaging damaging effects effects
constitute constitute "a "a somewhat somewhat remarkable remarkable proposition" .
122 123 123
that that a a child child
was was under under a a correlative correlative duty duty to to submit submit to to the the use use of of force. That That would would
121 121
indeed indeed a a parental parental "right", "right", it it would would be be necessary necessary to to find, find, on on the the Hohfeldian Hohfeldian analysis, analysis,
both both section section 59 59 and and the the common common law, law, a a legal legal "privilege". "privilege". corporal corporal If If punishment punishment were were
be be more more accurate, accurate, adopting adopting a a strict strict Hohfeldian Hohfeldian analysis, analysis, to to state state that that they they enjoy, enjoy, under under
their their children children (and (and this this is is the the term term used used in in section section 38 38 of of the the Infants Infants Act Act 1908), 1908), it it may may
"Although "Although parents parents are are often often loosely loosely said said to to have have a a legal legal "right" "right" to to physically physically punish punish
45 45
page page 2003, 2003, 523. 523.
Department Department of of Health Health (1999) (1999) in in Fortin Fortin Children's Children's Rights Rights and and the the Developing Developing Law, Law, Ed. Ed. 2nd 2nd
131 131
Section Section 15-17 15-17 Children, Children, Young Young Persons Persons and and their their Families Families Act Act 1989 1989
130 130
Fortin, Fortin, J. J. Children's Children's Rights Rights and and the the Developing Developing Law, Law, Ed. Ed. 2nd 2nd 2003, 2003, page page 520 520
129 129
matter matter how how young young they they are, are, unless unless they they cannot cannot understand understand the the questions questions asked asked of of them them or or
In In England, it it England, is is presumed presumed that that children children are are competent competent to to give give evidence evidence in in criminal criminal trials trials no no
and and process. process.
might might be be in in the the child's child's best best interests interests not not to to prosecute prosecute because because of of the the damaging damaging effects effects of of trial trial
would would be be in in the the child's child's best best interests interests to to be be taken taken away away from from an an abusive abusive parent. parent. Conversely, Conversely, it it
enforcing enforcing the the child's child's right right not not to to be be hit. hit. The The decision decision to to prosecute prosecute might might be be made made because because it it
The The 'best 'best interests' interests' argument argument does does not not produce produce a a straightforward straightforward result result in in this this context context of of
whether whether or or not not prosecution prosecution will will be be in in the the child's child's best best interests.
131 131
or or not not there there is is sufficient sufficient evidence, evidence, whether whether it it is is in in the the public public interest interest to to prosecute, prosecute, and and
three three factors factors to to be be taken taken into into account account when when deciding deciding to to initiate initiate criminal criminal proceedings: proceedings: whether whether
to to promote promote children's children's welfare welfare and and protect protect them them from from abuse abuse and and neglect, neglect, suggests suggests there there that are are
a a UK UK Department Department of of Health Health report report on on how how agencies agencies and and professionals professionals should should work work together together
This This does does not not necessarily necessarily mean mean that that a a conviction conviction will will be be sought sought however. however. Working Working Together, Together,
of of abuse: anyone anyone can can report report it, it, and and the the police police or or social social workers workers have have a a duty duty to to follow follow it it up. up.
130 130
children. In In New New Zealand Zealand there there are are specific specific legislative legislative provisions provisions surrounding surrounding the the reporting reporting
129 129
actually actually convicted, convicted, compared compared with with the the number number of of abuse-centered abuse-centered assaults assaults committed committed on on
against against children children were were an an area area of of serious serious underreporting. underreporting. Only Only a a tiny tiny proportion proportion of of abusers abusers are are
Even Even before before smacking smacking for for the the purposes purposes of of correction correction was was abolished, abolished, instances instances of of assaults assaults
viii) viii) An An instance instance where where rights rights might might clash: clash: Best Best interests interests v v autonomy autonomy in in giving giving evidence. evidence.
46 46
Supra. Supra. No. No. 59 59
137 137
Lord Lord Donaldson Donaldson MR MR in in Re Re R R (minors) (minors) [1991] [1991] 2 2 All All ER ER 193 193 at at 198 198
136 136
Company Company Ltd, Ltd, Aldershot, Aldershot, 1998. 1998.
Sebba, Sebba, L. L. (Eds.) (Eds.) & & Children's Children's Rights Rights and and Traditional Traditional Values, Values, Dartmouth Dartmouth Publishing Publishing
See See Falk, Falk, Z. Z. W. W. "Rights "Rights and and Autonomy- or or the the Best Best Interests Interests of of the the Child" Child" in in Douglas, Douglas, G. G.
135 135
discussion discussion paper, paper, Wellington, Wellington, 1996. 1996.
Law Law Commission, Commission, The The Evidence Evidence of of Children Children and and Other Other Vulnerable Vulnerable Witnesses: Witnesses: A A
134 134
Evidence Evidence (Children) (Children) Act Act 1997 1997
133 133
s53(1) s53(1) and and (3) (3) Youth Youth Justice Justice Criminal Criminal Evidence Evidence 1999 1999 Act
132 132
example example is is the the Bulger Bulger case case in in England, England, where where the the process process was was dampened dampened because because the the boys boys
children children When are are in in court court as as defendants, defendants, this this dichotomy dichotomy is is even even more more evident. evident. A A classic classic
that that along along with with rights rights come come responsibilities.
137 137
society society as as a a whole, whole, just just like like adults, adults, to to give give evidence, evidence, which which resembles resembles the the interest interest theory, theory,
136 136
same same rights rights as as everyone everyone else? else? Some Some judges judges have have expressly expressly said said that that children children owe owe a a duty duty to to
virtue virtue of of their their vulnerability, vulnerability, or or do do we we recognize recognize their their autonomy autonomy as as individual individual citizens citizens with with the the
children children When are are in in court, court, there there are are two two sets sets of of competing competing rights- do do we we protect protect them them by by
135 135
process.
134 134
that that the the purpose purpose of of a a trial trial is is to to get get to to the the truth, truth, and and to to allow allow the the defendant defendant a a fair, fair, due due
interests interests should should be be paramount paramount in in a a situation situation such such as as this. this. However, However, it it must must be be remembered remembered
freely. freely. Section Section 4 4 of of the the Care Care of of Children Act Act Children 2004 2004 says says that that the the child's child's welfare welfare and and best best
and and can can make make allowances allowances to to ensure ensure the the that child child is is comfortable comfortable and and can can give give their their testimony testimony
evidence evidence at at all. all. The The court court has has discretion discretion to to take take into into account account the the immaturity immaturity of of the the witness, witness,
assault assault cases, cases, however however there there are are no no rules rules that that say say that that children children cannot cannot be be compelled compelled to to give give
Evidence Evidence Act Act 2006 2006 provides provides children children with with alternative alternative methods methods of of giving giving evidence evidence in in sexual sexual
a a specific specific piece piece of of legislation legislation dedicated dedicated to to children's children's evidence. evidence. In In New New Zealand, Zealand, the the
133 133
they they answer answer cannot them them in in a a way way that that is is understandable understandable by by the the court. In In Australia Australia there there is is 132 132
47 47
Psychiatry, Psychiatry, Psychology Psychology and and Law, Law, 1, 1, 13-24 13-24
Zealand's Zealand's commitment commitment to to the the United United Nations Nations Convention Convention on on the the Rights Rights of of (1997) (1997) Child the 4 4
Davies, Davies, E., E., Seymore, Seymore, F. F. Child Child in in Witnesses the the Criminal Criminal Courts: Courts: Furthering Furthering New New
141 141
Psychology: Psychology: Applied, Applied, 3, 3, 187-195. 187-195.
examination examination on on the the accuracy accuracy of of children's children's reports reports (2003) (2003) 9 9 Journal Journal of of Experimental Experimental
R., R., Zajac, Zajac, Hayne, Hayne, H. H. I I don't don't think think that's that's what what really really happened: happened: The The effect effect of of cross
140 140
Section Section 23F 23F Evidence Evidence Act Act 1908 1908
139 139
T v v T UK; UK; V V v v UK[2000] UK[2000] Crim Crim LR LR 187, 187, ECtHR, ECtHR,
138 138
sexual sexual assault assault trials, trials,
while while at at the the same same time time ensuring ensuring a a fair fair and and just just process process for for the the accused.
141 141
as as this, this, so so perhaps perhaps more more needs needs to to be be done done to to protect protect children children as as vulnerable vulnerable witnesses witnesses in in non-
Convention, Convention, the the paramouncy paramouncy of of the the child's child's best best interest interest needs needs to to be be considered considered in in cases cases such such
evidence. evidence. give However, However, to to further further New New Zealand's Zealand's commitment commitment to to the the United United Nations Nations
because because New New Zealand Zealand has has seen seen only only a a few few cases cases actually actually go go to to court, court, require require and child child the to to
evidence evidence against against his his or or her her own own mother mother and/or and/or father father for for physical physical assault. assault. Perhaps Perhaps this this is is
cases, cases, however however it it has has not not recognised recognised that that it it would would be be equally equally hard hard for for a a child child to to give give
140 140
child's child's abuser abuser would would be be traumatic traumatic and and likely likely to to compromise compromise evidence evidence in in sexual sexual assault assault
care care giver giver of of the the child child witness. witness. The The legislature legislature has has recognised recognised that that cross cross examination examination by by the the
cases cases where where the the s59 s59 defence defence is is raised, raised, since since this this defence defence is is only only applicable applicable to to the the parent parent or or
victim, victim, and and it it is is arguable arguable that that a a vulnerable vulnerable witness witness should should have have the the same same protection protection in in
139 139
problematic. problematic. In In sexual sexual cases, cases, a a defendant defendant is is prohibited prohibited from from directly directly examining examining the the child child
methods methods of of giving giving evidence evidence in in cases cases of of common common assault, assault, and and this this could could be be potentially potentially
Unlike Unlike sexual sexual assault assault cases, cases, there there are are no no specific specific statutory statutory rules rules allowing allowing children children alternative alternative
take take into into account account
the the age age and and maturity maturity of of the the child child when when dealing dealing with with him him or or her her in in court.
138 138
same same way way as as adults. adults. The The European European Court Court of of Human Human rights rights in in that that case case said said that that the the court court must must
deemed deemed capable capable of of committing committing a a crime, crime, but but on on the the other, other, incapable incapable of of answering answering it it in in the the
were were so so young, young, yet yet they they were were being being tried tried as as adults adults for for a a serious serious crime. crime. On On one one hand hand they they were were
48 48
Supra, Supra, No. No. 110, 110, page page 434 434
145 145
Ibid. Ibid.
144 144
Ibid, Ibid, page page 126. 126.
143 143
Supra. Supra. No. No. 33 33
142 142
Child Child purported purported to to be be about about children's children's rights, rights, however however it it was was clearly clearly more framed framed in in terms terms of of
children's children's rights rights declarations. declarations. 1959 1959 the the In In United United Nations Nations Declaration Declaration on on the the Rights Rights ofthe ofthe
(protecting (protecting their their rights)." This This is is evident evident in in the the historical historical development development of of international international
145 145
(protecting (protecting children) children) to to propagating propagating the the personhood, personhood, integrity integrity and and autonomy autonomy of of children children
In In addition addition to to this, this, the the concept concept of of children's children's rights rights has has changed changed over over time, time, "from "from child-saving child-saving
focused focused the the on child's child's quality quality of of life.
144 144
working working with with will will vary vary depending depending on on whether whether the the discourse discourse is is needs needs or or rights rights based, based, or or
human human meaning-making." The The social social construction construction of of children children that that policy policy a maker maker might might be be
143 143
assumptions, assumptions, so so that that rather rather than than being being simple simple realities, realities, "they "they are are always always the the products products of of
This This means means that that the the way way we we understand understand these these concepts concepts is is influenced influenced by by attitudes attitudes and and
The The common common concepts concepts of of 'children' 'children' or or 'childhood' 'childhood' can can be be said said to to be be socially socially constructed. constructed.
children's children's issues.
142 142
in in society society will will shape shape the the way way they they formulate formulate strategies strategies and and procedures procedures for for dealing dealing with with
policies policies concerning concerning children children are are developed. developed. How How policy policy makers makers view view children children and and their their place place
Literature Literature on on the the sociology sociology of of childhood childhood and and children's children's rights rights can can help help to to explain explain how how
rights. rights. children's
3. 3. How How child-centred child-centred is is policy influenced influenced by by our our understanding understanding of of
49 49
Century, Century, Thomson Thomson Dunmore, Dunmore, Southbank, Southbank, Australia, Australia, 2004. 2004.
Children's Children's needs, needs,
rights rights and and welfare: welfare: Developing Developing Strategies Strategies for for the the 'Whole 'Whole Child' Child' in in the the 2F
1 1
national national strategies: strategies: Investing Investing in in and and protecting protecting the the 'whole 'whole child"' child"' in in Breen, Breen, C. C. (Ed.) (Ed.)
Breen, Breen, C. C. "The "The role role of of New New Zealand's Zealand's international international obligations obligations in in the the development development of of
150 150
Supra Supra No. No. 110 110
149 149
Supra Supra No. No. 117, 117, page page 135 135
148 148
Supra Supra No. No. 110, 110, page page 441. 441.
147 147
Supra. Supra. No. No. 33 33
146 146
influence influence domestic domestic policy, policy, however however this this is is not not always always the the case.
150 150
accommodate. Therefore, Therefore, accommodate. ideally, the the ideally, children's children's rights rights principles principles from from UNCRC UNCRC would would
article article 4, 4, state state parties parties are are required required to to promote, promote, where where and necessary, necessary, amend amend domestic domestic law law to to
autonomy autonomy for for children, children, the the various various articles articles set set out out fundamental fundamental rights rights which, which, by by virtue virtue of of
149 149
recognition recognition of of children children as as bearers bearers of of human human rights. rights. While While it it does does not not necessarily necessarily advocate advocate full full
New New Zealand's Zealand's ratification ratification of of the the UNCRC UNCRC in in 1993 1993 was was a a significant significant step step towards towards the the
• •
participation participation in in decisions decisions made made about about their their upbringing upbringing and and care."
148 148
• • protection protection from from exploitation exploitation and and abuse; abuse;
"• "• provision provision of of appropriate appropriate support support and and for for services healthy healthy development; development;
three three main main categories: categories:
UNCRC UNCRC recognises recognises this this arrangement arrangement to to some some extent. extent. The The rights rights that that it it promotes promotes fall fall within within
which which recognise recognise that that children children are are different different from from adults, adults, and and require require protection protection and and nurture. nurture.
their their status status as as individual individual persons. persons. Dignity-based Dignity-based rights rights are are different different from from 'needs-based' 'needs-based' rights rights
human human rights rights or or 'dignity-based' 'dignity-based' rights rights by by virtue virtue of of their their incapacity. incapacity. These These rights rights recognise recognise
groups: groups: needs-based needs-based rights rights and and dignity-based dignity-based rights. rights. Children Children should should not not be be denied denied basic basic
As As mentioned mentioned before, before, the the concept concept of of children's children's rights rights can can be be broken broken down down into into two two major major sub sub
to to be be independent."
147 147
largely largely "an "an autonomy autonomy model, model, which which would would as as much much as as possible possible give give children children the the opportunity opportunity
children's children's needs. In In comparison, comparison, UNCRC, UNCRC, which which was was created created some some 30 30 years years later, later, uses uses 146 146
50 50
Supra Supra No. No. 130 130
154 154
critical critical introduction, introduction, ed. ed. Oxford Oxford University, University, Auckland, Auckland, 2005. 2005. 3rd 3rd
Cheyne, Cheyne, C., C., Obrien, Obrien, M., M., Belgrave, Belgrave, M. M. Social Social Policy Policy & & in in Aotearoa Aotearoa New New Zealand: Zealand: A A
153 153
See See chapter chapter 2. 2.
152 152
Supra Supra No. No. 110 110
151 151
off off the the ground, ground, specifically specifically the the "key "key action action area" area" of of violence violence addressing in in children's children's lives, lives,
is is one one thing, thing, implementing implementing it it is is another. To To get get any any of of the the policies policies advocated advocated in in the the Agenda Agenda
154 154
autonomy autonomy of of children children described described by by Freeman. Freeman. However, However, as as Breen Breen points points out, out, having having a a policy policy
approach' approach' reflects reflects the the needs needs and and dignity dignity based based rights rights described described by by Woodhouse, Woodhouse, and and the the
need need of of adult adult protection, protection, control control and and guidance guidance by by virtue virtue of of their their immaturity. immaturity. The The 'whole 'whole child child
advocated advocated in in the the Agenda, Agenda, which which is is a a movement movement away away from from viewing viewing children children as as dependants dependants in in
demonstrated demonstrated that that theory theory impacts impacts on on strategy. strategy. The The 'whole 'whole child child approach' approach' is is heavily heavily
The The Ministry Ministry of of Social Social Development, Development, in in its its 2002 2002 Agenda Agenda for for Children Children (the (the Agenda), Agenda),
simply simply a a set set of of facts facts that that require require practical practical solutions. solutions.
suggest suggest that that policy policy and and theory theory inextricable. inextricable. are formulation formulation Policy depends depends on on theory, theory, and and not not
which which particular particular theory theory of of children's children's rights rights influenced influenced the the formulation. formulation. Cheyne Cheyne et et al
153 153
other other When policies policies concerning concerning children children are are developed developed in in New New Zealand, Zealand, it it is is possible possible to to see see
despite despite the the Committee's Committee's numerous numerous criticisms criticisms and and recommendations recommendations of of repeal.
152 152
been been reluctant reluctant to to change change this this policy, policy, and and defended defended it it its its in periodic periodic reports reports to to the the Committee, Committee,
influenced influenced the the development development policy of of corporal corporal punishment punishment of of children. children. New New Zealand Zealand has has
context context of of their their relationships relationships with with their their parents, parents, and and the the issue issue of of parental parental rights rights may may have have
influenced influenced by by other other social social constructions, constructions, namely namely relationships. Children Children are are seen seen in in the the
151 151
punishment. punishment. is is a a policy policy concerning concerning children's children's It It rights, rights, yet yet one one that that appears appears to to have have been been
One One of of the the most most pertinent pertinent examples examples of of this this in in New New Zealand Zealand is is the the abolishment abolishment of of corporal corporal
51 51
simply simply recognize recognize a a child's child's right right not not to to be be hit hit and and implement implement it it into into domestic domestic law. law.
'Parental 'Parental Control' Control' provision. provision. There There were were reasons reasons several why why New New Zealand Zealand struggled struggled to to
In In chapter chapter two two I I will will look look at at the the lead lead up up to to the the amendment amendment of of s59 s59 and and the the creation creation of of the the
from from other other members members of of society society and and still still justifies justifies parental parental hitting. hitting.
else else (arguably (arguably they they should should have have extra extra rights rights to to protection) protection) but but this this provision provision sets sets them them apart apart
rights rights theory. theory. Theoretically, Theoretically, children children should should have have the the same same right right not not to to be be hit hit as as every every one one
The The Parental Parental Control Control provision provision is is a a good good example example of of policy policy a that that is is not not based based on on children's children's
rights. rights.
children's children's rights rights is is not not really really useful useful unless unless there there is is the the ability ability to to actually actually implement implement those those
there there needed needed to to be be substantial substantial government government funding. funding. Having Having policy policy a that that recognizes recognizes
52 52
Supra Supra No. No. 69, 69, page page 371. 371.
158 158
1 1 Bl. Bl. Comm. Comm. 452. 452.
157 157
Supra Supra No. No. 37, 37, page page 23. 23.
156 156
2005, 2005, no no 271-1. 271-1.
155 155
physical physical punishment."
158 158
sub sub silento, silento, by by later later courts courts that that the the "correction" "correction" referred referred to to was was correction correction by by way way of of
the the child, child, being being under under age, age, in in a a reasonable reasonable manner." 1t 1t has has rightly rightly been been assumed, assumed,
157
"In "In an an oft-cited oft-cited passage, passage, Blackstone Blackstone simply simply noted noted that that a a parent parent "may "may lawfully lawfully correct correct
to to correct correct children, children, and and the the standard standard of of 'reasonableness' 'reasonableness' was was eventually eventually read read into into this: this:
to to physical physical punishment punishment of of children children was was that that parents, parents, caregivers caregivers and and teachers teachers could could use use force force
reflected reflected the the statutes statutes and and common common law law of of England. The The common common law law principle principle in in relation relation
156 156
system system of of law law was was ultimately ultimately based. based. The The New New Zealand Zealand system system of of law, law, in in its its earliest earliest stages, stages,
The The British British settlers settlers to to New New Zealand Zealand brought brought with with them them their their legal legal traditions traditions from from which which our our
a) a) The The development development of of legislation legislation
Rights Rights of of the the Child Child 1989. 1989.
the the major major influences influences the the on most most recent recent change change was was the the United United Nations Nations Convention Convention on on the the
undergone undergone several several developments developments since since the the New New Zealand Zealand legal legal system system was was established. established. One One of of
The The common common law law and and statutes statutes governing governing the the parental parental use use of of force force against against children children has has
1. 1. A A brief brief New New Zealand Zealand history history of of domestic domestic discipline discipline legislation. legislation.
reasons reasons behind behind the the massive massive public public resistance resistance to to it. it.
(Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Amendment Amendment Bill, Bill, and and the the
155 155
In In this this chapter chapter I I will will explore explore the the events events that that led led up up to to the the introduction introduction of of the the Crimes Crimes
Chapter Chapter 2: 2: Changing Changing the the law. law.
53 53
Supra Supra No. No. 37, 37, pages pages 21-22. 21-22.
164 164
press, press, Wellington, Wellington, 1995, 1995, page page 265. 265.
Metge, Metge, New New J. J. growth growth from from old: old: The The whanau whanau in in the the modern modern world, world, Victoria Victoria University University
163 163
Press, Press, Auckland Auckland Press Press 1998, 1998, page page 24. 24.
Makereti, Makereti, "The "The way way it it used used to to be" be" in: in: Ihimaera, Ihimaera, W W (Ed.), (Ed.), Growing Growing up up Maori, Maori, Tandem Tandem
162 162
Viking, Viking, Auckland, Auckland, 1991, 1991, page page 422. 422.
Salmond, Salmond, Two Two Worlds: Worlds: First First meetings meetings A. A. between between Maori Maori and and Europeans Europeans 1642-1772, 1642-1772,
161 161
http://www http://www .nzherald.co.nz/section/1/story .nzherald.co.nz/section/1/story .cfm?c_id= .cfm?c_id= 1 1 &objectid= &objectid= 1 1 0436914&ref=rss 0436914&ref=rss
30 30 April April 2007. 2007. Retrieved Retrieved 8/5/08 8/5/08 from: from:
"Turia "Turia says says colonisation colonisation and and Christianity Christianity to to blame blame for for smacking", smacking", New New Zealand Zealand Herald, Herald,
160 160
'Tamariki' 'Tamariki' means means children. children.
159 159
chastisement chastisement was was an an introduced introduced phenomenon: phenomenon:
Historical Historical accounts accounts of of indigenous indigenous cultures cultures in in other other parts parts of of the the world world also also show show that that physical physical
Physical Physical punishment punishment ofMaori ofMaori children children became became more more common ."
163
164 164
advice advice of of the the Christian Christian missionaries missionaries or or imitate imitate the the practices practices of of the the Pakeha Pakeha settlers. settlers.
presence presence in in Aotearoa Aotearoa became became more more pervasive, pervasive, Maori Maori began began to to adopt adopt the the child child rearing rearing
affection affection which which remained remained among among Maori Maori throughout throughout life life ...... But But as as the the European European
162 162
children children but but were were always always kind kind to to them, them, and and this this that seemed seemed to to strengthen strengthen the the bond bond of of
violence violence of of customary customary intertribal intertribal conflict. conflict. suggest suggest They that that Maori Maori never never beat beat their their
pervasive, pervasive, also also described described a a peaceful peaceful domestic domestic scene scene that that contrasted contrasted strongly strongly with with the the
Early Early Maori Maori writers, writers, recalling recalling life life in in the the days days before before the the European European influence influence became became so so
woman woman struck.
161 161
never never observed observed either either struck struck with with a a mark mark of of violence violence upon upon them, them, nor nor did did I I ever ever see see a a
I I saw saw no no quarrelling quarrelling while while I I was was there. there. They They are are to to kind their their women women and and children. children. I I
Missionary Missionary Society Society wrote wrote thus thus of of Maori Maori domestic domestic life: life:
"The "The early early nineteenth nineteenth century century missionary missionary the the Revd Revd Samuel Samuel Marsden Marsden of of the the Church Church
describe describe Maori Maori life life before before the the settlers settlers with with consistently Turia' Turia' s s comment: comment:
about about through through colonisation colonisation and and through through Christianity Christianity actually." Wood, Wood, Hassall Hassall and and Hook Hook
160 160
for for this this learned learned behaviour, behaviour, stating, stating, "Our "Our people people did did not not hit hit their their tamariki. That That only only came came
159 159
eo-leader, eo-leader, Party in in the the lead lead up up to to the the 2007law 2007law change change blamed blamed colonisation colonisation and and Christianity Christianity
however however there there is is evidence evidence to to suggest suggest that that the the Maori Maori population population was was not. not. Tariana Tariana Turia, Turia, Maori Maori
The The settlers settlers to to New New Zealand Zealand were were accustomed accustomed to to using using physical physical chastisement chastisement on on children, children,
54 54
Jossey-Bass Jossey-Bass Publishers, Publishers, San San Francisco, Francisco, 1997, 1997, page page 4. 4.
Hyman, Hyman, The The Case Case Against Against I. I. Spanking. Spanking. How How to to discipline discipline your your child child without without hitting, hitting,
165 165
provision provision was was not not updated updated until until the the Crimes Crimes Act Act 1961: 1961:
This This provision provision was was maintained maintained in in the the Crimes Crimes Act Act 1908 1908 as as section section 85. 85. The The wording wording of of the the
believed believed to to be be necessary, necessary, shall shall be be a a questions questions of of fact fact and not not and law. law.
(3) (3) The The reasonableness reasonableness of of the the force force used, used, or or any any of of the the grounds grounds on on which which the the force force was was
Provided Provided also also that that the the force force used used is is reasonable reasonable in in degree. degree.
Provided Provided that that he he believes believes on on reasonable reasonable grounds grounds that that such such force force is is necessary: necessary:
purposes purposes of of maintaining maintaining good good order order and and discipline discipline on on board board of of his his ship: ship:
(2) (2) is is lawful lawful for for the the master master It It or or officer officer in in command command of of a a ship ship on on a a voyage voyage to to use use force force for for the the
Provided Provided that that such such force force is is reasonable reasonable under under the the circumstances. circumstances.
by by way way of of correction correction towards towards any any child child or or pupil pupil under under his his care: care:
is is lawful lawful for for every every parent parent It It or or (1) (1) person person in in the the place place of of a a parent, parent, or or schoolmaster, schoolmaster, to to use use force force
Section Section 68 68 Domestic Domestic Discipline. Discipline.
to to use use force force for for the the purposes purposes of of correction correction in in New New Zealand: Zealand:
68 68 Section of of the the Criminal Criminal Code Code Act Act 1893 1893 was was the the first first codification codification of of the the common common law law right right
escalation escalation into into abuse. abuse.
of of a a connection connection between between the the mere mere cultural cultural acceptance acceptance of of hitting hitting children children and and the the eventual eventual
traditionally traditionally never never hit hit children children now now have have high high rates rates of of abuse, abuse, child and and cites cites this this as as evidence evidence
convinced convinced to to beat beat the the devil devil out out of of disobedient disobedient youths: youths: He He points points out out that that cultures cultures who who
the the Native Native Americans Americans were were eventually eventually indoctrinated indoctrinated with with Western Western theology theology and and were were
cultural cultural phenomenon phenomenon which which we we learn, learn, and and therefore therefore can can unlearn. unlearn. Hyman Hyman goes goes to to on say say that that
Irwan Irwan Hyman Hyman suggests suggests A. A. that that our our acceptance acceptance of of hitting hitting children children is is not not ingrained, ingrained, it it is is a a
peace peace with with barbarians. barbarians. What What could could you you say say to to a a man man who who would would strike strike a a child?"
165 165
chief chief reined reined in in his his horse horse and and said said to to his his companions, companions, "There "There is is no no point point in in talking talking
General. General. While While riding riding through through the the settlement settlement he he observed observed a a soldier soldier hitting hitting a a child. child. The The
Nez Nez Perce Perce Indian Indian chief chief who who was was on on a a peace peace mission mission to to meet meet with with an an American American
shocked shocked when when they they observed observed white white men men hitting hitting children. children. There There is is a a story story of of a a great great
peaceful peaceful and and warrior warrior cultures cultures that that did did not not endorse endorse hitting hitting children. children. Their Their leaders leaders were were
"On "On the the North North American American continent, continent, when when the the white white people people arrived, arrived, there there were were both both
55 55
Section Section 5 5 Crimes Crimes (Substituted (Substituted Section Section 59) 59) Amendment Amendment Act Act 2007. 2007.
167 167
Subs Subs (3) (3) inserted inserted by by 1990 1990 No No 60s 60s (28)(3) (28)(3) 23 23 July July 1990. 1990.
166 166
interest interest in in proceeding proceeding with with a a prosecution.] prosecution.]
force force against against a a child, child, where where the the offence offence is is considered considered to to be be so so inconsequential inconsequential that that there there is is no no public public
parent parent of of a a child child or or person person in in the the place place of of a a parent parent of of a a child child in in relation relation to to an an offence offence involving involving the the use use of of
( ( 4) 4) To To avoid avoid doubt, doubt, it it is is affirmed affirmed that that the the Police Police have have the the discretion discretion not not to to prosecute prosecute complaints complaints against against a a
(3) (3) Subsection Subsection (2) (2) prevails prevails over over subsection subsection (1). (1).
correction. correction.
(2) (2) Nothing Nothing in in subsection subsection or or (1) (1) in in any any rule rule of of law law common justifies justifies the the use use offorce offorce for for the the purpose purpose of of
(d) (d) performing performing the the normal normal daily daily tasks tasks that that are are incidental incidental to to good good care care and and parenting. parenting.
(c) (c) preventing preventing the the child child from from engaging engaging or or continuing continuing to to engage engage in in offensive offensive or or disruptive disruptive behaviour; behaviour; or or
offence; offence; or or
(b) (b) preventing preventing the the child child from from engaging engaging or or continuing continuing to to engage engage in in conduct conduct that that amounts amounts to to a a criminal criminal
(a) (a) preventing preventing or or minimising minimising harm harm to to the the child child or or another another person; person; or or
if if the the force force used used is is reasonable reasonable in in the the circumstances circumstances and and for for is the the purpose purpose of-
Every Every (1) (1) parent parent of of a a child child and and every every person person in in the the place place of of a a parent parent of of the the child child is is justified justified in in using using force force
s59 s59 Parental Parental Control. Control.
Control' Control' provision: provision:
167 167
In In June June 2007, 2007, section section 59 59 underwent underwent a a transformation transformation and and was was replaced replaced with with the the 'Parental 'Parental
section section 139A 139A of of the the Education Education Act Act 1989.] 1989.]
[(3) [(3) Nothing Nothing in in subsection subsection of of (1) (1) this this section section justifies justifies the the use use of of force force towards towards a a child child in in contravention contravention of of
schools. schools. Subsection Subsection 3 3 was was added:
166 166
In In 1990, 1990, Section Section 59 59 was was amended amended to to recognise recognise the the abolishment abolishment of of corporal corporal punishment punishment in in
(2) (2) The The reasonableness reasonableness of of the the force force used used is is a a question question of of fact. fact.
reasonable reasonable in in the the circumstances. circumstances.
parent parent of of a a child child is is justified justified in in using using force force by by way way of of correction correction towards towards the the child, child, if if the the force force used used is is
(1) (1) Every Every parent parent of of a a child child and, and, subject subject to to subsection subsection (3) (3) of of this this section, section, every every person person in in the the place place of of the the
59 59 Domestic Domestic discipline discipline
56 56
International International Journal Journal of of Law Law and and the the Family, Family, 133. 133.
McGoldrick, McGoldrick, D. D. The The United United Nations Nations Convention Convention th~ th~ on on Rights Rights of of the the Child, Child, (1991) (1991) 5 5
170 170
Children's Children's Rights Rights (2002) (2002) Great Great Britain, Britain, Kluwer Kluwer Law Law International. International.
Children's Children's Convention Convention on on the the Rights Rights of of the the Child', Child', page page 1, 1, in in Fottrell, Fottrell, D. D. (Ed.) (Ed.) Revisiting Revisiting
Fottrell, Fottrell, D. D. 'One 'One Step Step Forward Forward or or Two Two Steps Steps Sideways? Sideways? Assessing Assessing the the First First Decade Decade of of the the
169 169
from: from: http://www. http://www. unhchr.ch/htmllmenu3/b/k2crc.htm unhchr.ch/htmllmenu3/b/k2crc.htm
Office Office of of the the United United 2004, 2004, Nations Nations High High Commissioner Commissioner for for Human Human Rights, Rights, retrieved retrieved 8/5/08 8/5/08
Status Status of of Ratifications Ratifications of of the the Principle Principle International International Human Human Rights Rights Treaties, Treaties, as as at at 9 9 June June
168 168
requires requires state state parties parties to to take take measures measures to to ensure ensure that that children children are are protected protected from from abuse abuse and and
present present Convention." Convention." The The articles articles relevant relevant to to physical physical punishment punishment are are 19 19 and and 37. 37. Article Article 19 19
administrative, administrative, and and other other measures measures for for the the implementation implementation of of the the rights rights recognised recognised in in the the
Article Article 4 4 of of the the convention convention requires requires that that state state parties parties "undertake "undertake all all appropriate appropriate legislative, legislative,
economic, economic, cultural cultural and and humanitarian humanitarian rights."
170 170
rights." The The convention convention covers covers "not "not only only civil civil and and political political rights, rights, but but also also social, social,
169 169
binding binding universal universal treaty treaty dedicated dedicated solely solely to to the the protection protection and and promotion promotion of of children's children's
ratified ratified by by 191 191 states. New New Zealand Zealand ratified ratified the the Convention Convention in in 1993. 1993. UNCRC UNCRC is is "the "the first first
168 168
UNCRC UNCRC was was adopted adopted the the by United United Nations Nations General General Assembly Assembly in in 1989, 1989, and and to to date date has has been been
b) b) The The United United Nations Nations Convention Convention on on the the Rights Rights of of the the Child Child 1989 1989 (UNCRC). (UNCRC).
in in using using reasonable reasonable force force against against another, another, subservient subservient person, person, in in certain certain circumstances. circumstances.
one one are are the the terms terms "correction" "correction" and and "discipline". "discipline". The The idea idea prevails prevails that that one one person person is is justified justified
with with respect respect to to children. children. The The only only differences differences between between the the historical historical provision provision and and the the current current
crew crew to to maintain maintain discipline, discipline, yet yet virtually virtually the the same same words words are are in in still effect effect in in the the 2007 2007 Act Act
today's today's standards: standards: it it would would be be unconscionable unconscionable to to give give ship ship masters masters the the ability ability to to assault assault their their
domestic domestic discipline discipline provision provision from from 1893. 1893. The The 1893 1893 provision provision would would seem seem outrageous outrageous by by
It It is is interesting interesting to to note note the the that language language in in subsection subsection 1 1 has has not not changed changed since since the the original original
57 57
Handbook Handbook of of Children's Children's Rights: Rights: Comparative Comparative Policy Policy and and Practice, Practice, Routledge, Routledge, London, London, 2002. 2002.
Freeman Freeman M. M. "Children's "Children's rights rights ten ten years years after after ratification" ratification" in in Franklin, Franklin, B. B. (Ed.) (Ed.) The The New New
Domestic Domestic Law" Law" LLM LLM Research Research Paper, Paper, Victoria Victoria University, University, Wellington, Wellington, 1995. 1995. See See also also
McLeod, McLeod, R. R. "The "The United United Nations Nations Convention Convention the the on Rights Rights of of the the Child: Child: Implications Implications for for
171 171
child child that that was was implied implied in in article article 5 5 of of the the convention. convention. There There was was no no place place for for corporal corporal
between between the the responsibilities responsibilities of of the the parents parents and and the the rights rights and and evolving evolving capacities capacities of of the the
against, against, inter inter alia, alia, physical physical violence. violence. A A way way should should be be found found of of striking striking balance balance a
appropriate appropriate measures, measures, including including legislative legislative measures, measures, to to be be taken taken to to protect protect the the child child
It It must must be be borne borne in in mind, mind, however, however, that that article article 19 19 of of the the Convention Convention required required all all
of of the the Child's Child's (the (the Committee) Committee) response response was was unequivocal: unequivocal:
that that guardians guardians give give to to their their children. children. However, However, the the United United Nations Nations Committee Committee the the on Rights Rights
· · Convention Convention under under Article Article 5, 5, which which requires requires state state parties parties to to respect respect the the guidance guidance and and direction direction
discipline. discipline. Attempts Attempts have have been been made made to to read read legitimate legitimate physical physical punishment punishment into into the the
171 171
Neither Neither article article 19 19 nor nor article article 37 37 specifically specifically refer refer to to smacking, smacking, chastisement, chastisement, or or physical physical
treated treated with with the the same same respect respect that that is is afforded afforded to to adults. adults.
violence violence provision provision because because it it promotes promotes the the inherent inherent dignity dignity of of children children and and their their right right to to be be
liberty, liberty, life life imprisonment imprisonment and and capital capital punishment. punishment. However, However, it it is is still still related related to to the the general general
deals deals with with slightly slightly more more extreme extreme forms forms of of violence, violence, and and sets sets out out standards standards for for deprivation deprivation of of
are are not not subjected subjected to to torture torture or or other other cruel, cruel, inhuman inhuman or or degrading degrading punishment. punishment. This This article article
Article Article 19 19 is is closely closely linked linked to to Article Article 37, 37, which which requires requires state state parties parties to to ensure ensure that that children children
investigation, investigation, intervention intervention and and treatment treatment for for children. children.
children children and and to to prevent prevent abuse. abuse. Programmes Programmes should should include include procedures procedures for for reporting, reporting, referral, referral,
The The second second part part to to Article Article 19 19 states states that that countries countries should should put put in in place place programmes programmes to to support support
maltreatment. maltreatment.
neglect. neglect. This This includes includes physical physical and and mental mental violence, violence, physical physical and and sexual sexual abuse, abuse, neglect, neglect, and and
58 58
Under Under Article Article 44, 44, paragraph paragraph l(b), l(b), of of the the Convention, Convention, meeting, meeting, CRC/C/58 CRC/C/58 343rd 343rd
Regarding Regarding the the Form Form and and Content Content of of Periodic Periodic Reports Reports to to be be Submitted Submitted by by States States Parties Parties
United United Nations Nations Committee Committee the the on Rights Rights of of the the Child Child (1996) (1996) General General Guidelin·es Guidelin·es
176 176
Ibid Ibid at at para para 25 25
175 175
ninth ninth session session on on 3 3 June June 2005, 2005, CRC/C/58/Rev.l CRC/C/58/Rev.l
Under Under Article Article 44, 44, paragraph paragraph l(b), l(b), of of the the Convention, Convention, Adopted Adopted by by the the Committee Committee at at its its thirty
Regarding Regarding the the Form Form and and Content Content of of Periodic Periodic Reports Reports to to be be Submitted Submitted by by States States Parties Parties
United United Nations Nations Committee Committee the the on Rights Rights of of the the Child Child (2005) (2005) General General Guidelines Guidelines
174 174
Practice, Practice, Routledge, Routledge, London, London, 1995. 1995.
like like ...... "' "' in in Franklin, Franklin, (Ed.) (Ed.) The The Handbook Handbook B. B. of of Children's Children's Rights, Rights, Comparative Comparative Policy Policy and and
Newell, Newell, P. P. "Respecting "Respecting children's children's right right to to physical physical integrity. integrity. 'What 'What the the world world might might be be
173 173
Ireland, Ireland, 8th 8th Session, Session, CRC/C/15 CRC/C/15 Add Add 34. 34.
the the Committee Committee on on the the Rights Rights of of the the Child: Child: United United Kingdom Kingdom of of Great Great Britain Britain and and Northern Northern
Nations Nations United Committee Committee the the on Rights Rights of of the the Child Child (1995) (1995) Concluding Concluding observations observations of of
172 172
adopted adopted the the by Committee Committee in in 1996, which which "required "required reports reports to to include include 'whether 'whether legislation legislation
176 176
including including corporal corporal punishment punishment (art. (art. 37 37 (a))" (a))" . These These guidelines guidelines are are an an updated updated form form of of those those
175 175
not not to to be be subjected subjected to to torture torture or or other other cruel, cruel, inhuman inhuman or or degrading degrading treatment treatment or or punishment, punishment,
reports. The The guidelines guidelines require require the the reports reports to to include include relevant information information relevant on on "[t]he "[t]he right right
174 174
The The Committee Committee has has set set guidelines guidelines for for State State parties parties to to follow follow when when making making their their periodic periodic
i) i) Guidelines Guidelines
Convention. Convention.
general general comments comments that that it it regards regards physical physical punishment punishment as as contradictory contradictory to to the the principles principles of of the the
Committee. Committee. The The Committee Committee have have made made it it explicitly explicitly clear, clear, through through guidelines, guidelines, reports reports and and
discipline discipline reasonable is is not not violent, violent, however however this this is is not not the the position position taken taken the the by
173 173
and and mental mental violence". violence". The The obvious obvious response response from from advocates advocates of of corporal corporal punishment punishment is is that that
Article Article 19 19 unambiguously unambiguously states states that that children children shall shall be be protected protected from from "all "all forms forms of of physical physical
exercise exercise of of their their responsibilities.
172 172
punishment punishment within within the the margin margin of of discretion discretion accorded accorded in in article article 5 5 to to parents parents in in the the
59 59
parties parties due due in in 1995: 1995: New New Zealand. Zealand. 12/10/95, 12/10/95, CRC/C/28/Add.3. CRC/C/28/Add.3. (State (State Party Party Report) Report)
Nations Nations United Committee Committee the the on Rights Rights of of the the Child Child (1995) (1995) Initial Initial reports reports of of States States
179 179
Ibid, Ibid, page page 135 135
178 178
Supra Supra No. No. 33 33
177 177
to to resort resort to to physical physical punishment."
179 179
Week" Week" to to show show parents parents how how to to be be effective effective in in disciplining disciplining their their children children without without having having
Committee Committee for for the the International International Year Year of of the the Family Family ran ran a a campaign campaign for for a a "Smack- free free
Crimes Crimes Act. Act. Also, Also, as as part part of of its its activities activities in in focusing focusing on on family family relationships, relationships, the the
punishment punishment for for disciplining disciplining children children and and has has advocated advocated the the repeal repeal of of section section 59 59 of of the the
189. 189. The The Commissioner Commissioner for for Children Children has has promoted promoted the the idea idea of of alternatives alternatives to to physical physical
from from abuse abuse and and maltreatment. maltreatment.
is is a a criminal criminal offence offence and and extensive extensive measures measures are are in in place place for for the the protection protection of of children children
reasonable reasonable in in the the circumstances. circumstances. However, However, the the use use of of unreasonable unreasonable force force against against a a child child
justified justified in in using using force force by by way way of of correction correction towards towards a a child child provided provided the the force force used used is is
discipline discipline children children in in early early centres centres childhood or or registered registered schools. schools. Parents Parents are are legally legally
188. 188. An An amendment amendment to to the the Crimes Crimes Act Act 1961 1961 in in 1990 1990 outlawed outlawed the the use use of of force force to to
Department Department of of Social Social Welfare Welfare or or the the Ministry Ministry of of Education. Education.
discipline discipline on on children children or or young young people people within within institutions institutions under under the the jurisdiction jurisdiction of of the the
institutions institutions is is prohibited. prohibited. is is not not permissible permissible to to use use It It physical physical punishment punishment in in the the form form of of
"187. "187. Corporal Corporal punishment punishment of of children children and and young young people people within within government government
punishment: punishment:
contrary contrary to to Article Article 19. In In 1995 1995 New New Zealand Zealand reported reported to to the the Committee Committee on on corporal corporal
178 178
The The Committee Committee has has criticised criticised state state parties parties for for maintaining maintaining corporal corporal punishment punishment laws laws that that are are
ii) ii) Reports Reports
violence, violence, including including corporal corporal punishment' punishment' ."
177 177
(criminal (criminal and/ and/ or or family family law) law) includes includes on on prohibition a all all forms forms of of physical physical and and mental mental
60 60
the the Committee Committee on on the the Rights Rights of of the the Child: Child: New New Zealand. Zealand. 24/01197, 24/01197, CRC/C/15/Add.71 CRC/C/15/Add.71
United United Nations Nations Committee Committee the the on Rights Rights of of the the Child Child (1997) (1997) Concluding Concluding observations observations of of
181 181
consideration consideration of of the the initial initial report report of of New New Zealand, Zealand, 14th 14th session, session, CRC/C/28/Add.3 CRC/C/28/Add.3
Convention Convention On On The The Rights Rights Of Of The The Child, Child, List List of of issues issues to to be be taken taken up up in in connection with with connection the the
United United Nations Nations Committee Committee the the on Rights Rights of of the the Child Child (1996) (1996) Implementation Implementation Of Of The The
180 180
children children
• • the the fact fact that that section section 59 59 does does not not sanction sanction any any form form of of violence violence or or abuse abuse against against
sufficient sufficient protection protection through: through:
the the circumstances circumstances to to discipline discipline their their children. children. New New Zealand Zealand believes believes it it provides provides
period period and and it it continues continues to to provide provide a a defence defence for for parents parents to to use use force force that that is is reasonable reasonable in in
"79. "79. Section Section 59 59 of of the the Crimes Crimes Act Act 1961 1961 has has not not been been reviewed reviewed during during the the reporting reporting
to to smacking: smacking:
Zealand Zealand opted opted for for an an education education campaign, campaign, to to teach teach parents parents alternative alternative methods methods of of discipline discipline
there there was was other other legislation legislation available available to to abused abused protect children. children. Instead Instead of of repealing repealing s59, s59, New New
Committee Committee by by stating stating that that s59 s59 did did not not sanction sanction the the use use of of violence violence against against children, children, and and that that
of of disciplining disciplining their their children. children. New New Zealand Zealand did did not not review review the the law, law, and and justified justified this this to to the the
of of the the Crimes Crimes Act Act 1961 1961 allowed allowed parents parents or or guardians guardians to to use use reasonable reasonable force force for for the the purposes purposes
corporal corporal punishment punishment legislation legislation line line in with with principles principles of of the the convention. convention. Until Until recently, recently, s59 s59
criticized criticized by by the the Nations Nations United Committee Committee on on the the Rights Rights of of the the Child Child for for failing failing to to bring bring
Later, Later, in in 2003, 2003, New New Zealand Zealand reported reported to to the the Committee Committee again. again. New New Zealand Zealand had had been been
article article 39 39 of of the the Convention.
181 181
social social reintegration reintegration of of children children victims victims of of such such ill-treatment ill-treatment and and abuse, abuse, in in the the light light of of
mechanisms mechanisms be be established established to to ensure ensure the the physical physical and and psychological psychological recovery recovery and and
of of or or physical mental mental violence, violence, injury injury or or abuse. abuse. further further recommends recommends that that It It appropriate appropriate
corporal corporal punishment punishment of of children children the the within family family in in order order to to effectively effectively ban ban all all forms forms
29. 29. The The Committee Committee recommends recommends the the that State State party party review review legislation legislation with with regard regard to to
then then recommended recommended that that New New Zealand Zealand review review s59 s59 of of the the Crimes Crimes Act. Act.
the the Crimes Crimes Act Act as as had had been been suggested suggested the the by Commissioner Commissioner for for Children. The The Committee Committee
180 180
The The Committee Committee responded responded by by asking asking whether whether New New Zealand Zealand was was considering considering repealing repealing s59 s59 of of
61 61
States States parties parties due due in in 2000: 2000: New New Zealand. Zealand. 12/03/2003, 12/03/2003, CRC/C/93/Add.4, CRC/C/93/Add.4, pages pages 20-21 20-21
United United Nations Nations Committee Committee the the on Rights Rights of of the the Child Child (2003) (2003) Second Second periodic periodic reports reports of of
182 182
• • other other characteristics characteristics of of the the child, child, such such as as physique, physique, sex sex and and state state of of health health
• • the the age age and and maturity maturity of of the the child child
parent parent was was reasonable, reasonable, including: including:
499. 499. The The Court Court considers considers a a number number of of factors factors to to decide decide if if the the degree degree of of force force used used by by a a
the the purpose purpose of of correction correction and and where where the the degree degree of of force force used used is is "reasonable". "reasonable".
requirement requirement that that physical physical force force may may only only be be administered administered to to a a child child where where it it is is done done for for
parent parent from from the the consequences consequences of of using using excessive excessive force. force. The The legislation legislation is is clear clear in in its its
498. 498. Section Section 59 59 of of the the Crimes Crimes Act Act 1961 1961 does does not not sanction sanction abuse abuse child or or protect protect a a
189 189 of of the the Initial Initial Report.) Report.)
the the legal legal framework framework for for corporal corporal punishment punishment has has not not changed. changed. (See (See paragraphs paragraphs 187-
497. 497. Education Education campaigns campaigns on on alternatives alternatives to to smacking smacking have have been been developed. developed. However, However,
Corporal Corporal punishment punishment
"Legal "Legal Safeguards Safeguards
alternatives alternatives to to physical physical punishment punishment amongst amongst the the public: public:
legal legal 'safeguards' 'safeguards' and and an an education education campaign campaign was was that launched launched to to raise raise awareness awareness of of the the
New New Zealand Zealand justified justified the the failure failure to to review review s59 s59 of of the the Crimes Crimes Act Act by by highlighting highlighting existing existing
preceded preceded legislative legislative change."
182 182
the the issue issue of of compliance compliance with with UNCROC, UNCROC, including including the the education education campaigns campaigns that that
how how other other comparable countries countries comparable (particularly (particularly in in the the European European Union) Union) have have addressed addressed
81. 81. In In October October 2000 2000 the the Government Government directed directed officials officials to to report report as as soon soon as as possible possible on on
and and the the Peace Peace Foundation. Foundation.
corporal corporal punishment punishment produced produced by by non-government non-government organisations, organisations, especially especially EPOCH EPOCH
the the law law is is changed. changed. Reference Reference was was made made to to educational educational material material on on alternatives alternatives to to
punishment punishment recognised recognised parents parents do do need need to to be be "effectively" "effectively" educated educated and and supported supported if if
that that removing removing it it would would lead lead to to loss loss of of parental parental control. control. The The opponents opponents of of corporal corporal
community community because because hitting hitting is is seen seen as as "standard "standard parental parental discipline". discipline". Others Others thought thought
One One argument argument was was that that physical physical abuse abuse of of children children will will remain remain unreported unreported in in the the
80. 80. Submissions Submissions criticised criticised Government Government for for not not reviewing reviewing section section 59 59 of of the the Crimes Crimes Act. Act.
(Please (Please see see paragraphs paragraphs 187 187 to to 189 189 of of New New Zealand's Zealand's Initial Initial Report.) Report.)
protection protection when when abuse abuse is is substantiated. substantiated.
• • the the provisions provisions of of the the Children, Children, Young Young Persons Persons and and Their Their Families Families Act Act 1989 1989 provides provides
62 62
Ibid, Ibid, pages pages 99-100 99-100
183 183
reviewed: reviewed:
physical physical integrity. integrity. The The Committee Committee again again asked asked New New Zealand Zealand why why s59 s59 had had not not been been
punishment. punishment. Section Section 59 59 was was doing doing nothing nothing to to promote promote a a child's child's right right to to human human dignity dignity and and
which which requires requires state state parties parties to to protect protect children children from from all all forms forms of of violence, violence, including including corporal corporal
Zealand's Zealand's policy policy on on physical physical punishment punishment still still lay lay outside outside the the perimeters perimeters of of the the convention, convention,
The The committee committee was was pleased pleased with with this this effort, effort, however however deemed deemed that that it it was was not not enough. enough. New New
Foundation."
183 183
material material on on alternatives alternatives to to corporal corporal punishment punishment produced produced by by EPOCH EPOCH and and the the Peace Peace
educated educated and and supported supported if if the the law law is is changed. changed. Reference Reference was was made made to to educational educational
Opponents Opponents of of corporal corporal punishment punishment recognised recognised that that parents parents do do need need to to be be "effectively" "effectively"
Other Other people people thought thought that that to to do do away away it it with will will mean mean loss loss of of parental parental control. control.
unreported unreported in in the the community community because because hitting hitting is is seen seen as as "standard "standard parental parental discipline". discipline".
504. 504. A A submission submission stated stated that that physical physical abuse abuse of of children children will will continue continue to to happen happen
pre-contemplation pre-contemplation to to contemplation contemplation of of the the alternatives alternatives to to smacking. smacking.
from from
smacking. smacking. It It also also found found positive positive a attitudinal attitudinal shift shift and and a a significant significant behavioural behavioural shift shift
to to
503. 503. Results Results show show the the campaign campaign was was successful successful in in raising raising awareness awareness of of the the alternatives alternatives
(Annex (Annex 46). 46).
supported supported by by postersl postersl an an 0800 0800 freephone freephone help help line line and and pamphlet pamphlet distribution distribution
think think about about using using them. them. This This campaign campaign focused focused on on television television as as the the key key medium, medium,
raise raise awareness awareness of of the the alternatives alternatives to to smacking smacking and and encourage encourage parents parents and and caregivers caregivers to to
Breaking Breaking the the Cycle Cycle programme programme that that commenced commenced in in 1995. 1995. The The main main objectives objectives are are to to
Family Family launched launched the the "Alternatives "Alternatives to to Smacking" Smacking" campaign, campaign, the the fourth fourth stage stage in in the the
alternatives alternatives to to corporal corporal punishment punishment of of children. children. In In September September 1998, 1998, Child, Child, and and Youth
502. 502. New New Zealand Zealand uses uses education education as as the the primary primary means means to to encourage encourage parents parents to to find find
the the education education campaigns campaigns that that have have preceded preceded change change legislative (see (see paragraphs paragraphs 79-81). 79-81).
501. 501. The The Government Government is is reviewing reviewing other other countries countries steps steps to to address address this this issue, issue, including including
force force in in disciplining disciplining a a child. child.
does does this this section section make make it it acceptable acceptable for for a a parent parent to to apply apply an an unreasonable unreasonable degree degree of of
500. 500. The The section section does does not not sanction sanction uncontrolled uncontrolled punishment punishment carried carried out out in in anger. anger. Nor Nor
• • the the type type and and circumstances circumstances of of punishment. punishment.
• • the the type type of of offence offence
63 63
Ibid, Ibid, page page 6 6
186 186
New New Zealand, Zealand, 27110/2003, 27110/2003, CRC/C/15/Add.216, CRC/C/15/Add.216, page page 2 2
United United Nations Nations Committee Committee on on the the Rights Rights of of the the Child Child (2003) (2003) Concluding Concluding observations: observations:
185 185
consideration consideration of of the the second second periodic periodic report report of of New New Zealand, Zealand, 34th 34th session, session, CRC/C/93/Add. CRC/C/93/Add. 4 4
Convention Convention On On The The Rights Rights Of Of The The Child, Child, List List of of issues issues to to be be taken taken up up in in connection connection with with the the
Nations Nations United Committee Committee the the on Rights Rights of of the the Child Child (2003) (2003) Implementation Implementation Of Of The The
184 184
consequences consequences of of corporal corporal punishment." punishment." (Committee's (Committee's emphasis) emphasis)
186 186
dignity dignity and and physical physical integrity, integrity, while while raising raising awareness awareness about about the the negative negative
positive, positive, non-violent non-violent forms forms of of discipline discipline and and respect respect for for children's children's right right to to human human
(b) (b) Strengthen Strengthen public public education education campaigns campaigns and and activities activities aimed aimed at at promoting promoting
(a) (a) Amend Amend legislation legislation to to prohibit prohibit corporal corporal punishment punishment in in the the home; home;
30. 30. The The Committee Committee recommends recommends that that the the State State party: party:
children's children's right right to to protection. protection.
and and which which should should be be accompanied accompanied by by awareness-raising awareness-raising campaigns campaigns on on the the law law and and on on
children children from from all all forms forms of of violence, violence, which which includes includes corporal corporal punishment punishment in in the the family family
the the home, home, the the Committee Committee emphasizes emphasizes the the that Convention Convention requires requires the the protection protection of of
public public education education campaign campaign to to promote promote positive, positive, non-violent non-violent forms forms of of discipline discipline within within
use use reasonable reasonable force force to to discipline discipline their their children. children. welcoming welcoming While the the Government's Government's
party party has has still still not not amended amended section section 59 59 of of the the Crimes Crimes Act Act 1961, 1961, which which allows allows parents parents to to
"29. "29. The The Committee Committee is is deeply deeply concerned concerned that that despite despite a a review review of of legislation, legislation, the the State State
abuse abuse (para. (para. 29)"
185 185
establishment establishment of of mechanisms mechanisms to to ensure ensure the the recovery recovery of of victims victims of of ill-treatment ill-treatment and and
employment employment (para. (para. 23), 23), and and the the prohibition prohibition of of corporal corporal punishment punishment and and the the
Convention, Convention, including including the the age age of of criminal criminal responsibility responsibility and and minimum minimum age age of of
recommendations recommendations relating relating to to the the harmonization harmonization of of domestic domestic legislation legislation with with the the
insufficiently insufficiently addressed. addressed. The The Committee Committee is is particularly particularly concerned concerned about about the the
" " ...... the the Committee Committee notes notes with with concern concern that that some some recommendations recommendations have have been been
New New Zealand Zealand had had done done nothing nothing about about earlier earlier recommendations: recommendations:
The The Committee Committee urged urged New New Zealand Zealand to to ban ban corporal corporal punishment, punishment, and and was was critical critical of of the the fact fact
abuse abuse (para. (para. 29).
184 184
establishment establishment of of mechanisms mechanisms to to ensure ensure the the recovery recovery of of victims victims of of ill-treatment ill-treatment and and
with with the the Convention Convention including including ...... the the prohibition prohibition of of corporal corporal punishment punishment and and
implemented, implemented, in in particular particular those those related related to to the the harmonization harmonization of of domestic domestic legislation legislation
the the Committee's Committee's previous previous observations observations (CRC/C/15/Add.71) (CRC/C/15/Add.71) have have not not yet yet been been fully fully
Please Please provide provide information information the the on reasons reasons some some of of the the recommendations recommendations contained contained in in
64 64
Geneva, Geneva, 15 15 May-2 May-2 June June 2006 2006
forms forms of of punishment punishment (arts. (arts. 19; 19; 28, 28, para. para. 2; 2; and and 37, 37, inter inter alia), alia), 42nd 42nd session, session, CRC/C/GC/8, CRC/C/GC/8,
The The right right of of the the child child to to protection protection from from corporal corporal punishment punishment and and other other or or cruel degrading degrading
Nations Nations United Committee Committee the the on Rights Rights of of the the Child Child (2006) (2006) General General Comment Comment No. No. 8, 8,
192 192
See See 3, 3, chapter The The Quality Quality Prescriptive of of the the Parental Parental Control Control Defence. Defence.
191 191
Amendment Amendment Act. Act.
Section Section Act Act 59(2)Crimes 1961 1961 as as substituted substituted by by section section 5 5 Crimes Crimes (Substituted (Substituted Section Section 59) 59)
190 190
See See 3, 3, chapter The The Problem Problem of of Parental Parental Control. Control.
189 189
See See below, below, "what "what went went wrong.' wrong.'
188 188
no no 271-1. 271-1.
Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bill2005, Bill2005,
187 187
move move quickly quickly to to prohibit prohibit and and eliminate eliminate all all corporal corporal punishment punishment and and all all other other cruel cruel or or
The The purpose purpose of of issuing issuing the the comment comment was was to to "highlight "highlight the the obligation obligation of of all all States States parties parties to to
In In the the 2006 2006 the the Committee Committee released released its its General General Comment Comment No.8 on on corporal corporal punishment. punishment.
192 192
General General Comments Comments iii) iii)
retains retains an an avenue avenue for for the the hitting hitting of of children. children.
protection protection from from assault. assault. forms" forms" of of violence violence "All "All have have not not been been eliminated eliminated if if the the legislation legislation
breached. are are Children still still unequal unequal rights rights bearers bearers in in the the context context of of physical physical integrity integrity and and
191 191
integrity, integrity, because because it it lays lays out out all all of of the the circumstances circumstances where where are are child's child's rights rights can can be be
provision, provision, which which still still does does not not promote promote a a child's child's right right to to human human dignity dignity and and physical physical
may may commend commend the the removal removal of of corporal corporal punishment, punishment, but but criticise criticise the the new new Parental Parental Control Control
It It is is possible possible that that the the Committee Committee will will still still not not be be satisfied satisfied with with New New Zealand's Zealand's efforts. efforts. They They
can can be be used used against against a a child. Physical Physical force force for for the the purposes purposes of of discipline discipline was was abolished.
189 189 190 190
a a very very complex complex provision provision that that attempts attempts to to clearly clearly set set out out situations situations where where reasonable reasonable force force
it it would would not not pass pass into into law. Instead, Instead, a a compromise compromise was was reached, reached, and and s59 s59 was was amended amended into into
188 188
recommendations, recommendations, however however there there was was so so much much opposition opposition to to the the Bill Bill that that there there was was a a risk risk that that
In In 2007, 2007, there there was was an an attempt attempt to to repeal repeal s59, s59, which which would would have have answered answered the the Committee's Committee's 187 187
65 65
Routledge, Routledge, London, London, 1997. 1997.
King, King, A A M., M., Better Better World World for for Children: Children: Explorations Explorations in in Morality Morality and and Authority, Authority,
196 196
Ibid, Ibid, at at para para 21. 21.
195 195
Ibid, Ibid, at at para para 11. 11.
194 194
Ibid, Ibid, at at para para 2. 2.
193 193
out, out, the the procedures procedures for for implementing implementing children's children's rights rights advocated advocated in in UNCRC UNCRC lack lack 'structural 'structural
legislation legislation contrary contrary to to the the clear clear principles principles in in the the treaty. treaty. However, However, as as Michael Michael King points points
196 196
It It seems seems strange strange that that as as a a party party to to an an international international treaty, treaty, New New Zealand Zealand can can have have domestic domestic
awareness awareness and and putting putting in in place place reporting, reporting, referral, referral, educational educational and and monitoring monitoring mechanisms. mechanisms.
corporal corporal punishment, punishment, and and also also to to take take measures measures to to implement implement that that prohibition prohibition by by raising raising
reiterated reiterated that that State State parties parties have have an an obligation obligation to to take take legislative legislative measures measures to to prohibit prohibit
of of children children to to respect respect for for their their human human dignity dignity and and physical physical integrity." The The Committee Committee
195 195
made made clear clear that that corporal corporal punishment punishment "directly "directly conflicts conflicts with with the the equal equal and and inalienable inalienable rights rights
19 19 specifically specifically prohibits prohibits with with the the words words "all "all forms forms of of physical physical and and mental mental violence." violence." is is also also It It
Committee Committee The makes makes it it clear clear that that corporal corporal punishment punishment is is a a form form of of violence, violence, which which Article Article
belittles, belittles, humiliates, humiliates, denigrates, denigrates, scapegoats, scapegoats, threatens, threatens, scares scares or or ridicules ridicules the the child."
194 194
thus thus incompatible incompatible with with the the Convention. Convention. These These include, include, for for example, example, punishment punishment which which
there there are are other other non-physical non-physical forms forms of of punishment punishment that that are are also also cruel cruel and and degrading degrading and and
the the view view of of Committee, Committee, the corporal corporal punishment punishment is is invariably invariably degrading. degrading. In In addition, addition,
washing washing children's children's mouths mouths out out with with soap soap or or forcing forcing them them to to swallow swallow hot hot spices). spices). In In
stay stay in in uncomfortable uncomfortable positions, positions, burning, burning, scalding scalding or or forced forced ingestion ingestion (for (for example, example,
children, children, scratching, scratching, pinching, pinching, biting, biting, pulling pulling hair hair or or boxing boxing ears, ears, forcing forcing children children to to
wooden wooden spoon, spoon, etc. etc. But But it it can can also also involve, involve, for for example, example, kicking, kicking, shaking shaking or or throwing throwing
"spanking") "spanking") children, children, with with the the hand hand or or with with an an implement implement - a a - whip, whip, stick, stick, belt, belt, shoe, shoe,
of of pain pain or or discomfort, discomfort, however however light. light. Most Most involves involves hitting hitting ("smacking", ("smacking", "slapping", "slapping",
" " ...... any any punishment punishment in in which which physical physical force force is is used used and and intended intended to to cause cause some some degree degree
'physical 'physical punishment punishment is is defined defined as: as:
raising raising and and educational educational measures measures that that States States must must take.'d 'Corporal 'Corporal punishment' punishment' or or
93 93
degrading degrading forms forms of of punishment punishment of of children children and and to to outline outline the the legislative legislative and and other other awareness-
66 66
Ibid, Ibid, pages pages 179-180. 179-180.
198 198
Ibid, Ibid, page page 179. 179.
around around the the decisions decisions of of the the European European Human Human Rights Rights Court Court and and Commission." Commission."
violations. violations. This This obligation obligation provides provides for for the the eo-evolution eo-evolution of of legal legal and and political political programmes programmes
found found to to have have committed committed a a human human rights rights violation violation to to change change its its laws laws in in order order to to avoid avoid future future
'irritation' 'irritation' for for governments, governments, imposing imposing political political a and and legal legal obligation obligation on on the the government government
convention convention ensure ensure the the that Court's Court's decision decision or or the the settlement settlement between between the the parties parties results results in in an an
King King provides provides the the example example of of the the European European Human Human Rights Rights Convention: Convention: "The "The terms terms of of the the
197 197
necessary necessary do do they they respond respond by by complying complying with with their their international international obligations. obligations. But But even even
denying denying them, them, thus thus undermining undermining the the authority authority of of their their accusers. accusers. Only Only where where absolutely absolutely
political political response response of of governments governments is is to to defend defend themselves themselves against against these these charges charges by by
unable unable or or unwilling unwilling to to fulfil fulfil its its international international or or constitutional constitutional obligations. obligations. The The obvious obvious
government government seen seen and as as unjustified unjustified and and ill-informed ill-informed criticism criticism the the that government government is is
children's children's rights rights become become reconstructed reconstructed not not as as legal legal duties duties but but as as threats threats to to national national
complaints complaints from from legal legal or or quasi-legal quasi-legal international international organizations organizations about about violations violations of of
"In "In the the absence absence of of any any structural structural coupling coupling between between law law and and politics, politics, therefore, therefore,
international international obligations, obligations, so so long long as as they they do do not not compromise compromise their their political political objectives: objectives:
coupling, coupling, governments governments will will at at most most make make 'cosmetic' 'cosmetic' changes changes to to legislation legislation to to fulfil fulfil
King King has has made made a a prediction, prediction, an an accurate accurate one one in in New New Zealand's Zealand's case, case, that that without without structural structural
in in New New Zealand Zealand became became political political a 'hot 'hot potato', potato', and and the the focus focus of of the the Bill Bill was was lost. lost.
prevented prevented issues issues political getting getting in in the the way way of of children's children's rights rights advancement. advancement. The The s59 s59 issue issue
seemingly seemingly unpopular unpopular law law change change to to the the Convention Convention and and international international law law would would have have
In In the the case case of of corporal corporal punishment punishment in in New New Zealand, Zealand, deferment deferment of of responsibility responsibility for for a a
as as in in the the case case of of the the UNCRC, UNCRC, this this displacement displacement of of political political responsibility responsibility is is not not possible."
198 198
national national government government to to the the Commission Commission or or Court. Court. Where Where no no such such structural structural coupling coupling exists, exists,
unpopular unpopular changes changes in in domestic domestic legislation legislation and and administrative administrative practice practice can can be be passed passed from from the the
country country to to change, change, but but legal legal pressure pressure as as we11. Consequently, Consequently, "[r]esponsibility "[r]esponsibility for for any any
197 197
country's country's policy policy is is contradictory contradictory to to a a Convention Convention not not only only puts puts political political pressure pressure that that on
Conventions Conventions because because it it has has no no Court Court to to enforce legal legal enforce processes. processes. A A Court's Court's decision decision that that a a
coupling'. coupling'. Basically, Basically, this this means means that that lacks lacks UNCRC teeth teeth when when compared compared to to other other
67 67
See See chapter chapter 4. 4.
200 200
lbid, lbid, page page 180 180
199 199
two two hit birds birds with with one one stone: stone: A A void void embarrassment embarrassment international after after pressure pressure mounting
for for the the purposes purposes of of correction, correction, but but not not all all uses uses of of force, force, it it seems seems like like New New Zealand Zealand is is trying trying to to
members members of of society society should should have have been been done done away away with. with. By By doing doing away away with with the the use use of of force force
equal equal rights rights to to protection protection under under the the law, law, all all forms forms of of assault assault that that are are not not justified justified for for other other
ban ban parental parental hitting hitting of of children.Z To To fully fully recognise recognise children children as as individual individual social social actors actors with with
00 00
The The changes changes New New Zealand Zealand made made to to 59 59 were were merely merely cosmetic cosmetic in in that that that that they they did did not not fully fully
issue, issue, available available for for compromise. compromise.
order order to to comply comply with with our our international international legal legal obligations, obligations, rather rather than than being being a a domestic domestic political political
would would have have been been better better promoted. promoted. A A full full repeal repeal of of s59 s59 would would have have been been a a matter matter of of course course in in
other other words, words, had had UNCRC UNCRC been been a a legally legally enforceable enforceable international international treaty, treaty, children's children's rights rights
Consequently, Consequently, the the substance substance of of the the complaint, complaint, children's children's rights, rights, has has been been undermined. undermined. In In
'cosmetic' 'cosmetic' changes changes to to s59, s59, so so as as to to protect protect their their political political agendas agendas at at the the same same time. time.
completely completely fulfilling fulfilling its its obligations obligations to to UNCRC, UNCRC, the the New New Zealand Zealand government government made made
politics politics got got in in the the way way of of reforming reforming the the as as legislation consistent consistent with with UNCRC. UNCRC. Rather Rather than than
contested contested domestic domestic issue, issue, with with two two sides sides to to be be taken. taken. King's King's predictions predictions were were accurate: accurate:
for for change change had had to to come come from from within within New New Zealand. Zealand. This This meant meant that that the the issue issue was was a a hotly hotly
legislation, legislation, the the lack lack of of legal legal obligations obligations and and sanctions sanctions within within UNCRC UNCRC the the that meant impetus impetus
Despite Despite the the fact fact the the that Committee Committee has has urged urged New New Zealand Zealand to to review review its its domestic domestic discipline discipline
those those pasts pasts of of the the electorate electorate on on which which they they rely rely for for their their support."
199 199
compromise compromise the the ideological ideological stance stance that that won won them them the the confidence confidence of of the the electorate electorate or or
this this were were possible), possible), where where would would these conflict conflict with with their their political political programmes programmes or or
are are least least likely likely to to do do is is take take substantive substantive measures measures to to improve improve children's children's lives lives (even (even if if
the the law, law, which which are are unlikely unlikely to to affect affect the the government's government's political political objectives. objectives. What What they they
here here the the changes changes that that they they introduce introduce are are likely likely to to take take the the form form of of cosmetic cosmetic reforms reforms in in
68 68
See See below, below, 'What 'What went went wrong?' wrong?'
203 203
more more justifiable justifiable invasions invasions of of children's children's physical physical integrity. integrity.
See See chapter chapter 4 4 for for an an explanation explanation of of how how the the Parental Parental Control Control provision provision actually actually allows allows
202 202
Supra Supra No. No. 130. 130.
201 201
note note to to the the Bill Bill described described its its purpose purpose as: as:
(the (the Bill) Bill) was was a a simple simple bid bid for for a a full full repeal repeal of of s59 s59 of of the the Crimes Crimes Act Act 1961. 1961. The The explanatory explanatory
The The Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bill2005 Bill2005
a) a) What What the the initial initial Bill Bill was was about. about.
different, different, due due to to widespread widespread hysteria hysteria and and misunderstanding.
203 203
was was passed passed into into law, law, this this purpose purpose seemed seemed to to have have morphed morphed into into something something completely completely
guiding guiding society's society's attitudes attitudes and and behaviours behaviours away away from from violence. violence. However, However, by by the the time time the the Bill Bill
only only about about correcting correcting a a children's children's rights rights injustice, injustice, but but also also precipitating precipitating social social change, change, by by
and and respect respect the the child's child's right right not not to to be be hit. hit. The The repeal repeal of of s59 s59 of of the the Crimes Crimes Act Act 1961 1961 was was not not
When When Sue Sue Bradford Bradford introduced introduced her her Bill, Bill, it it had had a a specific specific purpose, purpose, which which was was to to repeal repeal s59 s59
1961. 1961.
2. 2. The The lead lead up up to to the the amendment amendment of of Section Section 59 59 of of the the Crimes Crimes Act Act
might might actually actually violate violate them them even even more?
202 202
provision provision that that replaced replaced Domestic Domestic Discipline Discipline does does nothing nothing to to promote promote children's children's rights, rights, and and
talk talk as as far far as as children's children's rights rights are are concerned, concerned, but but is is it it really really walking walking the the walk if if the the
201 201
domestic domestic population population by by not not removing removing all all uses uses of of force. force. New New Zealand Zealand appears appears to to be be talking talking the the
from from the the UN UN to to abolish abolish corporal corporal punishment punishment at at while the the same same time time appeasing appeasing the the distressed distressed
69 69
(2005) (2005) 627 627 NZPD NZPD 22086 22086
205 205
no no 271-1. 271-1. See See Appendix Appendix 1. 1.
Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bill2005, Bill2005,
204 204
that that Government Government has has a a responsibility responsibility to to lead lead the the way way on on this." this."
despite despite paying paying lip lip service service to to it, it, because because we we allow allow State-sanctioned State-sanctioned force force here. here. I I believe believe
Convention Convention the the on Rights Rights of of the the Child. Child. We We are are currently currently in in breach breach of of the the convention, convention,
"It "It is is high high time time we we lived lived up up to to our our commitments commitments as as a a signatory signatory to to the the United United Nations Nations
2) 2) That That the the is is Bill about about fulfilling fulfilling New New Zealand's Zealand's obligations obligations to to UNCRC: UNCRC:
dangerous dangerous law law still still applies." applies."
wives, wives, servants, servants, and and horses. horses. Strangely, Strangely, it it is is only only children children to to whom whom this this quaint quaint but but
their their total total control control and and to to harsh harsh physical physical discipline. discipline. At At that that time time the the same same applied applied to to
which which said said that that children children were were simply simply the the property property of of their their parents parents and and were were subject subject to to
me me that that section section 59 59 of of the the Crimes Crimes Act Act is is a a relic relic of of English English 19th 19th century century law law and and thinking, thinking,
crop crop or or a a piece piece of of wood, wood, but but it it can can be be legal legal to to do do the the same same thing thing to to my my child. child. It It seems seems to to
beat beat my my spouse, spouse, another another adult, adult, a a policeman, policeman, or or even even an an animal animal harshly harshly with with a a horse horse
assault assault that that adults adults have. have. I I do do not not understand understand at at all all why why it it is is illegal illegal in in New New Zealand Zealand to to
"It "It is is about about giving giving children children and and young young people people the the same same legal legal protection protection from from physical physical
in in assault line line with with other other members members of of society: society:
1) 1) That That the the Bill Bill is is about about bringing bringing children's children's rights rights to to bodily bodily integrity integrity and and protection protection from from
intentions intentions behind behind the the proposed proposed law law change: change:
In In the the first first reading of of the the Bill, Bill, Sue Sue Bradford Bradford made made several several points points very very clearly clearly about about the the
205 205
common common law law justification, justification, excuse excuse or or defence defence the the that provision provision may may have have codified."
204 204
provision provision in in the the criminal criminal law, law, and and the the repeal repeal of of section section 59 59 ought ought not not revive revive any any old old
constitute constitute an an assault assault under under section section 194(a) 194(a) of of the the Crimes Crimes Act, Act, a a comparatively comparatively new new
else else so so far far as as the the use use of of force force (assault) (assault) is is concerned. concerned. The The use use of of force force on on a a child child may may
and and guardians guardians will will be be removed. removed. Children Children will will now now be be in in the the same same position position as as everyone everyone
The The effect effect of of this this amendment amendment is is the the that statutory statutory for for protection use use of of force force by by parents parents
reasonable reasonable in in the the circumstances. circumstances. The The Bill Bill will will repeal repeal that that provision. provision.
children children where where they they are are doing doing so so for for the the purposes purposes of of correction correction and and the the force force used used is is
justification, justification, excuse excuse or or defence defence for for parents parents and and guardians guardians using using force force against against their their
correction correction or or discipline. discipline. Presently, Presently, section section 59 59 of of the the Crimes Crimes Act Act 1961 1961 acts acts as as a a
" " ...... to to stop stop force, force, and and associated associated violence violence being being inflicted inflicted on on children children in in the the context context of of 3) That the Bill is about changing attitudes towards children's rights, and curtailing violent behaviours:
"In practice, section 59 conveys the message to all New Zealanders that the State thinks it is legitimate and OK to use so-called reasonable force against those who, at least until they grow up, are smaller, weaker, and less mature than we are."
"Our country has an all-pervasive culture of violence against children that leads to us having one of the highest abuse and child mortality rates in the developed world. People coming to this country for the first time, even from places like Israel, are shocked by the culture of violence we have here in the household and in the family."
"I welcome the national debate that my bill has opened up about how, as a society, we regard and treat our children."
4) That the Bill is not about banning light smacking:
"What I am not doing is proposing a new law that might, for example, make it a crime to lightly smack a child or to physically restrain a child when such restraint is manifestly necessary, such as when a toddler is closing in on a power point with a fork in hand."
"This bill is not about imposing penalties on parents who currently use light physical discipline. It is about giving children and young people the same legal protection from physical assault that adults have."
5) The Bill is not about criminalising parents:
"I am not seeking in any way to criminalise ordinary parents. I just want to remove a legal defence that is used when some people seriously hit or beat their children."
"It is a nonsense to say that, as so many of my political opponents are doing at the moment, should repeal of section 59 happen, parents will suddenly be subject to arrest, prosecution, and conviction if they lightly smack their child. There is no way the Department of Child, Youth and Family Services will abruptly abandon its huge current caseload to remove children from parents who smack them, as United Future ridiculously alleges; nor will police, all at once, start arresting parents who put their child in a room for a bit of time out. It is patently ridiculous to think that all of a sudden the removal of the defence of reasonable force will lead to police all over the country arresting people for such actions. Goodness knows, they have enough other work to do. The aim of this repeal is not to subject parents to prosecution for trivial assault. In other countries where laws like this have been changed, there has not been a marked increase in such arrests. I certainly would not expect it to happen here, where the climate of public opinion is so manifestly not ready for a ban on smacking."
70
71 71
Attitudes Attitudes (1960) (1960) The The 24 24 Public Public Opinion Opinion Quarterly Quarterly 2, 2, 163-204. 163-204.
supportive supportive of of their their new new behaviour." behaviour." Katz, Katz, D. D. The The Functional Functional Approach Approach to to the the Study Study of of
"Often "Often behaviour behaviour change change precedes precedes attitude attitude change change ...... In In time time they they will will develop develop attitudes attitudes
209 209
Universities Universities Law Law Review, Review, 387. 387.
children." children." Caldwell, Caldwell, J. J. Parental Parental Physical Physical L. L. Punishment Punishment and and the the Law, Law, (1989) (1989) New New Zealand Zealand 13 13
probably probably be be equally equally appalled appalled by by the the existing existing legal legal privilege privilege accorded accorded to to us us to to beat beat our our
their their wives, wives, and and to to masters masters to to beat beat their their apprentices apprentices servants. servants. and Our Our descendants descendants will will
we we are are rightly rightly appalled appalled by by the the previous previous legal legal privileges privileges accorded accorded to to husbands husbands to to beat beat " " .•. .•.
208 208
Release, Release, 20 20 February February 2008. 2008.
Kiwis Kiwis remain remain opposed opposed to to "anti-smacking" "anti-smacking" legislation, legislation, Research Research New New Zealand, Zealand, Media Media
maximum maximum margin margin of of error error is+/- 4.7% 4.7% (at (at the the 95% 95% confidence confidence level). level).
able able to to smack smack their their children, children, contrary contrary to to repeal repeal the of of Section Section 59 59 of of the the Crimes Crimes Act". Act". The The
Parental Parental Control Control provision provision was was passed passed "74% "74% of of New New Zealanders Zealanders believed believed parents parents should should be be
73% 73% percent percent of of those those polled polled opposed opposed the the Bill Bill in in March March 2007. 2007. Nine Nine months months after after the the
207 207
413. 413.
physical physical punishment, punishment, human human rights rights and and English English reform reform law (2006) (2006) Legal Legal 26 26 Studies Studies 3, 3, 394-
failed failed to to encourage encourage attitudinal attitudinal changes. changes. Keating, Keating, H. H. Protecting Protecting or or punishing punishing children: children:
Keating Keating discusses discusses the the UK UK corporal corporal punishment punishment scenario scenario and and how how the the government government has has
206 206
defence defence forces forces people people to to change change their their behaviour, behaviour, which which in in turn turn causes causes a a shift shift in in attitude.
209 209
some some practices practices of of our our ancestors ancestors that that shock shock us us or or make make us us cringe cringe now. now. Removing Removing the the
208 208
attitudes attitudes and and eventually eventually physical physical chastisement chastisement will will become become socially socially unacceptable, unacceptable, just just like like
Ideally, Ideally, by by removing removing this this endorsement endorsement and and justification, justification, people people will will gradually gradually change change their their
majority majority of of New New Zealanders Zealanders believe believe that that smacking smacking is is a a socially socially acceptable acceptable behaviour.
207 207
Zealand Zealand public, public, that that this this is is a a socially socially acceptable acceptable behaviour. behaviour. Polls Polls have have shown shown that that the the
Crimes Crimes Act Act legitimised legitimised assault assault against against children, children, which which sends sends a a very very clear clear message message to to the the New New
rights, rights, then then gradually gradually the the public public attitudes attitudes should should follow. follow. Prior Prior to to the the amendment amendment of of s59, s59, the the
hitting hitting of of children children and and begins begins to to children children recognise as as individual individual citizens citizens deserving deserving of of equal equal
exercise exercise in in social social change. When When the the State, State, through through its its legislation, legislation, no no longer longer endorses endorses the the
206 206
Repealing Repealing the the defence defence of of reasonable reasonable force force for for the the puiposes puiposes of of correction correction can can be be seen seen as as an an
b) b) An An exercise exercise in in social social change. change.
72 72
autonomous autonomous individuals individuals ...... " " The The Swedish Swedish ban ban came came under under the the Parent's Parent's Code Code rather rather than than the the
"The "The goal goal of of the the ban ban was was to to alter alter public public attitudes attitudes and and to to acknowledge acknowledge children's children's rights rights as as
214 214
http://www http://www .areyouok.org.nzlhome. .areyouok.org.nzlhome. php php
See See government government website, website, 'Family 'Family violence, violence, it's it's not not ok'. ok'. Accessed Accessed 14/5/08 14/5/08 from from
213 213
Crimes Crimes Amendment Amendment Act Act (1985) (1985) No.3 No.3
212 212
(2007) (2007) 638 638 NZPD NZPD 8432 8432
211 211
New New Zealand Zealand Family Family Law Law Journal14 Journal14
Taylor, Taylor, N. N. Physical Physical punishment punishment of of children: children: international international legal legal developments developments (2005) (2005) 5(1) 5(1)
210 210
found found in in studies studies of of attitudes attitudes in in Sweden, Sweden, which which banned banned corporal corporal punishment punishment in in 1979:
214 214
Evidence Evidence that that social social attitudes attitudes can can change change regarding regarding physical physical punishment punishment of of children children has has been been
singled singled out out as as the the only only group group in in society society against against which which the the state state endorses endorses the the use use of of force. force.
attitude attitude shift shift surrounding surrounding violence violence against against children children might might happen happen if if children children are are no no longer longer
acceptable acceptable for for a a man man to to physically physically chastise chastise his his wife wife for for bad bad behaviour. A A comparable comparable
213 213
attitude attitude a a that woman's woman's body body belongs belongs to to her her husband. husband. Similarly, Similarly, it it is is no no longer longer socially socially
spousal spousal immunity immunity to to rape rape has has been been relatively relatively recently recently abolished, along along with with the the social social
212 212
abolishment abolishment of of legislation legislation made made that their their rights rights subservient subservient to to their their husbands. husbands. For For example, example,
attitudes attitudes Social towards towards women's women's rights rights to to physical physical integrity integrity have have changed changed with with the the
children: children: in in the the name name of of child child discipline."
211 211
laws laws is is section section 59 59 of of the the Crimes Crimes Act, Act, which which allows allows all all of of us us as as parents parents to to beat beat our our
a a master master to to beat beat a a servant, servant, or or an an employer employer to to beat beat an an employee. employee. But But the the relic relic of of those those
that that allowed allowed the the husband husband to to beat beat the the wife. wife. We We got got rid rid of of the the laws laws that that said said it it was was OK OK for for
We We have have got got rid rid of of those those laws. laws. We We used used to to have have them, them, but but we we have have got got rid rid of of the the laws laws
servants, servants, and and the the children. children.
the the husband. husband. With With that that attitude attitude came came a a law law that that said said it it was was OK OK to to beat beat the the wife, wife, the the
women, women, that wives, wives, servants, servants, and and children children were were the the property property of of the the master, master, the the man, man, and and
"Some "Some of of our our ancestors ancestors brought brought with with them, them, unfortunately, unfortunately, a a culture culture and and law law that that said said
seamen. The The only only group group was was that left left was was children: children:
210 210
in in assault the the name name of of chastisement chastisement on on other other groups groups in in society, society, including including students students and and
As As Sue Sue Bradford Bradford pointed pointed out, out, New New Zealand Zealand has has done done away away legislation legislation with that that legitimised legitimised
73 73
Supra Supra No. No. 216, 216, page page 169. 169.
218 218
the the Prevention Prevention of of Cruelty Cruelty to to Children, Children, London, London, 2002. 2002.
that that Accord Accord Children Children Full Full Legal Legal Protection Protection from from Physical Physical Punishment, Punishment, National National Society Society for for
Boy Boy Equal Equal son, son, Protection Protection R. R. for for Children: Children: An An Overview Overview of of the the Experience Experience of of Countries Countries
217 217
Report Report (1983) (1983) Journal Journal 45 45 of of Marriage Marriage and and the the Family, Family, 917-926. 917-926.
See See also, also, Ziegert, Ziegert, K.A. K.A. The The Swedish Swedish Prohibition Prohibition of of Corporal Corporal Punishment: Punishment: A A Preliminary Preliminary
The The International International 11 11 Journal Journal of of Children's Children's Rights, Rights, page page 169 169
E. E. Durrant, Durrant, J. J. Legal Legal Reform Reform and and Attitudes Attitudes towards towards physical physical punishment punishment in in Sweden Sweden (2003) (2003)
216 216
Routledge, Routledge, London, London, 2002, 2002, page page 384. 384.
The The New New Handbook Handbook B. B. (Ed.) (Ed.) of of Children's Children's Rights, Rights, Comparative Comparative Policy Policy and and Practice, Practice,
Newell, Newell, P. P. "Global "Global progress progress towards towards giving giving up up the the habit habit of of hitting hitting children" children" in in Franklin, Franklin,
215 215
Against Against Children: Children: A A Challenge Challenge for for Society, Society, Berlin, Berlin, New New York, York, 1996, 1996, 19-25. 19-25.
Durrant, Durrant, J. J. E. E. "The "The Swedish Swedish Ban Ban on on Corporal Corporal Punishment" Punishment" in in de de Gruyter Gruyter Family Family W. W. Violence Violence
subjected subjected to to physical physical punishment punishment or or other other injurious injurious or or humiliating humiliating treatment." treatment."
Children Children are are to to be be treated treated with with respect respect for for their their person person and and individuality individuality and and may may not not be be
criminal criminal code, code, and and read: read: "Children "Children are are entitled entitled to to care, care, security, security, and and a a good good upbringing. upbringing.
of of abolition abolition before before the the law law was was changed changed (Boyson, (Boyson, 2002 )."
217 218 218
(Finland) (Finland) that that have have explicitly explicitly abolished abolished physical physical punishment punishment was was the the majority majority in in favour favour
was was changed changed that that these these attitudes attitudes shifted shifted rapidly. rapidly. In In fact, fact, in in only only one one of of the the countries countries
believed believed that that physical physical punishment punishment was was necessary necessary in in childrearing. childrearing. after after was was the the law law It It
punishment punishment defence defence was was removed removed from from the the Penal Penal Code, Code, at at least least half half of of the the population population
legal legal reform reform or or for for the the attitude attitude shifts shifts that that can can follow follow it. it. When When Sweden's Sweden's corporal corporal
law. law. But But as as the the Swedish Swedish experience experience has has shown, shown, this this is is not not a a necessary necessary condition condition for for
"Certainly, "Certainly, as as cultural cultural beliefs beliefs evolve evolve they they can, can, in in turn, turn, contribute contribute to to the the reform reform of of the the
neither neither one one necessarily necessarily presupposes presupposes the the other: other:
demonstrated demonstrated that that law law reform reform and and attitude attitude change change can can resemble resemble the the chicken chicken and and the the egg; egg;
on on corporal corporal punishment, punishment, most most of of the the public public supported supported its its use, use, however however the the Swedish Swedish case case has has
of of legal legal structures." Sweden Sweden was was in in similar similar position position to to New New Zealand, Zealand, in in that that before before the the ban ban
216 216
"too "too dramatic dramatic to to be be attributable attributable solely solely to to forces forces that that somehow somehow alter alter cultural cultural regardless regardless norms
Joan Joan Durrant Durrant has has found found that that the the change change in in attitude attitude about about corporal corporal punishment punishment in in Sweden Sweden is is
child child died died as as a a result result of of abuse. abuse. "
215 215
abuse abuse mortality mortality rates rates are are extremely extremely low low in in Sweden; Sweden; for for 14 14 years years from from 1976 1976 to to 1990 1990 no no
countries countries where where a a quarter quarter or or more more of of young young children children are are hit hit with with implements). implements). Child Child
per per cent cent report report being being hit hit with with an an implement implement (contrast (contrast the the position position in in the the UK UK and and other other
shortly shortly after after the the ban, ban, only only 3 3 per per cent cent reported reported harsh harsh slaps slaps from from their their parents, parents, and and only only 1 1
forms. forms. Practice Practice as as well well as as attitudes attitudes have have changed; changed; of of those those whose whose childhood childhood occurred occurred
found found only only 6 6 per per cent cent of of under under 35-year-olds 35-year-olds supporting supporting the the use use of of even even the the mildest mildest
majority majority of of Swedes Swedes were were supportive supportive of of corporal corporal punishment, punishment, the the most most recent recent survey survey
"Public "Public support support for for corporal corporal punishment punishment has has declined declined markedly. markedly. Whereas Whereas in in 1965 1965 a a
74 74
Maxim Maxim Institute, Institute, Auckland. Auckland.
Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bill, Bill, by by the the
statement statement was was made made as as part part of of a a submission submission to to the the Justice Justice and and Electoral Electoral Committee Committee on on the the
physical physical discipline discipline and and abuse, abuse, such such that that there there is is a a divide divide between between the the two two behaviours" behaviours" This This
currently currently permitted permitted by by section section 59 59 ...... There There is is a a qualitative qualitative difference difference between between moderate moderate
"It "It is is clear clear that that physical physical abuse abuse leads leads to to long-term long-term problems, problems, but but physical physical abuse abuse is is not not
221 221
essence essence and and purpose. purpose.
See See chapter chapter for for 3 an an analysis analysis of of how how the the amendments amendments to to the the original original Bill Bill changed changed its its very very
220 220
Chapter Chapter 8 8 is is an an insightful insightful analysis analysis of of the the role role of of the the media media in in fuelling fuelling the the debate. debate.
towards towards banning banning the the physical physical punishment punishment of of children, children, Save Save the the Children Children New New Zealand, Zealand, 2008. 2008.
Attitudes" Attitudes" in in Wood, Wood, B., B., Hassall, Hassall, Hook., Hook., G, G, Unreasonable Unreasonable I., I., Force. Force. New New Zealand's Zealand's journey journey
For For a a comprehensive comprehensive summary summary of of the the public public resistance resistance to to the the Bill, Bill, see see chapter chapter 7: 7: "Public "Public
219 219
was was intended intended to to combat combat child child abuse. abuse.
what what constitutes constitutes 'abuse', 'abuse', it it also also reinterprets reinterprets the the purpose purpose of of the the Bill. Bill. supposes supposes that that the the Bill Bill It It
criminals criminals for for using using light light physical physical punishment. punishment. This This argument argument not not only only requires requires an an analysis analysis of of
abusers, abusers, so so to to remove remove it it would would make make no no difference, difference, and and instead instead it it would would make make good good parents parents
same same thing. In In essence, essence, they they argue argue the the that domestic domestic discipline discipline defence defence did did not not protect protect
221 221
Opponents Opponents of of the the Bill Bill claim claim that that reasonable reasonable physical physical punishment punishment and and child child abuse abuse are are not not the the
a) a) Child Child Abuse Abuse
major major restructuring. restructuring. Consequently, Consequently, the the whole whole essence essence of of the the Bill Bill was was lost.
220 220
potato", potato", and and to to avoid avoid failure, failure, the the Bill Bill had had to to meet meet some some of of these these concerns concerns by by undergoing undergoing
criminalisation criminalisation of of parents parents and and religion. religion. As As a a result, result, the the debate debate turned turned into into a a "political "political hot hot
the the focus focus of of the repeal repeal the became became less less about about children's children's rights rights and and more more about about abuse, abuse, child
the the time time between between the the Bill Bill being being introduced introduced and and the the Parental Parental Control Control provision provision being being passed, passed,
Just Just like like in in Sweden, Sweden, there there was was a a massive massive public public resistance resistance to to the the Bill Bill in in New New Zealand. In In
219 219
3. 3. What What went went wrong? wrong? How How the the purpose purpose behind behind the the Bill Bill was was lost. lost.
75 75
here here in in the the household household and and in in the the family" family" (2005) (2005) 627 627 NZPD NZPD 22086 22086
for for the the first first time, time, even even from from places places like like Israel, Israel, are are shocked shocked by by the the culture culture of of violence violence we we have have
highest highest abuse abuse and and child child mortality mortality rates rates in in the the developed developed world. world. People People coming coming to to this this country country
has has an an all-pervasive all-pervasive culture culture of of violence violence against against children children that that leads leads to to us us having having one one of of the the
See See above, above, An An exercise exercise in in social social change. change. Also, Also, Sue Sue Bradford's Bradford's comment, comment, "Our "Our country country
227 227
Supra Supra No. No. 37 37
226 226
Supra Supra No. No. 20 20
225 225
Zealand, Zealand, 2005. 2005.
or or amendment amendment of of Crimes Crimes Act Act 1961, 1961, section section 59, 59, Public Public Issues Issues Committee, Committee, Auckland Auckland New New
Auckland Auckland District District Law Law Society, Society, Criminal Criminal responsibility responsibility for for domestic domestic discipline: discipline: the the repeal repeal
224 224
the the assumption assumption that that child child abuse abuse is is liked liked with with physical physical punishment. punishment.
Zealand, Zealand, 2008. 2008. Editorial Editorial comment comment and and coverage coverage of of child child in in homicides the the media media enhanced enhanced
journey journey towards towards banning banning the the physical physical punishment punishment of of children, children, Save Save the the Children Children New New
See See Chapter Chapter 8, 8, Wood, Wood, B., B., Hassall, Hassall, Hook., Hook., G, G, Unreasonable Unreasonable I., I., Force. Force. New New Zealand's Zealand's
223 223
Please Please Don't Don't Take Take my my Daughter, Daughter, Sunday Sunday Star Star Times, Times, 27/1108. 27/1108.
"trivial "trivial matters", matters", and and stated, stated, "meanwhile "meanwhile the the unacceptable unacceptable rate rate of of abuse abuse child continues". continues".
cases cases where where parents parents had had been been investigated investigated for for using using force force against against their their children children in in various various
Times Times Advertisement Advertisement against against the the "Anti-Smacking" "Anti-Smacking" law. law. The The advertisement advertisement cited cited examples examples of of
National National Radio, Radio, 21 21 December December 2007. 2007. Family Family First First quoted quoted this this in in a a full full page page Sunday Sunday Star Star
222 222
Swedish Swedish experience experience has has shown shown that that there there is is a a low low rate rate of of child child deaths deaths by by abuse abuse in in a a country country
intended intended to to do do away away with with socially socially accepted accepted physical physical practices practices against against children. children. The The
227 227
While While the the Bill Bill was was not not about about addressing addressing New New Zealand's Zealand's abuse abuse child problems, problems, it it was was
purposes purposes of of correction. correction.
226 226
Sue Sue Bradford Bradford was was adamant adamant that that her her Bill Bill would would never never be be compromised compromised on on hitting hitting for for the the
the the Auckland Auckland District District Law Law Society, and and considered considered by by the the Law Law Commission, however however
224 224 225 225
through through the the 'reasonable 'reasonable force' force' test test in in the the past. past. Such Such options options were were put put forward forward by by MP's MP's and and
smacking smacking of of children children from from severe severe beatings beatings and and cases cases of of child child abuse abuse that that had had managed managed to to slip slip
submissions submissions made made to to the the Justice Justice and and Electoral Electoral Committee Committee sought sought to to distinguish distinguish legitimate legitimate
with with the the portrayal portrayal of of the the two two issues issues becoming becoming increasingly increasingly intertwined. Many Many of of the the
223 223
The The connection connection between between child child abuse abuse and and physical physical discipline discipline was was strengthened strengthened by by the the media, media,
country country continues, continues, sadly. sadly. My My bill bill was was never never intended intended to to solve solve that that problem."
222 222
Sue Sue Bradford Bradford herself herself has has said, said, "The "The epidemic epidemic of of child child abuse abuse and and child child violence violence in in this this
76 76
Child Child Abuse Abuse and and Neglect, Neglect, 1109-1114. 1109-1114.
Straus, Straus, M. M. A. A. Corporal Corporal Punishment Punishment and and Prevention Prevention Primary of of Physical Physical Abuse Abuse (2000) (2000) 24(9) 24(9)
For For an an assessment assessment of of the the connection connection between between child child abuse abuse and and physical physical punishment punishment see, see,
231 231
Supra Supra No. No. 163, 163, page page 31. 31.
230 230
examples examples see see Coddington, Coddington, D. D. Disciplined Disciplined to to Death, Death, North North and and South, South, February February 2000, 2000, 32-44. 32-44.
The The Rights Rights and and Wrongs Wrongs of of Children, Children, Francis Francis Pinter, Pinter, London, London, 1983. 1983. For For specific specific New New Zealand Zealand
Many Many instances instances of of child child abuse abuse are are simply simply corporal corporal punishment punishment gone gone too too far. far. Freeman, Freeman, M. M.
229 229
Children's Children's Rights, Rights, Kluwer Kluwer Law Law International, International, Great Great Britain, Britain, 2000. 2000.
Newell, Newell, P. P. "Ending "Ending corporal corporal punishment punishment of of children" children" in in Fottrell, Fottrell, D. D. (Ed.) (Ed.) Revisiting Revisiting
Between Between 1976 1976 and and 1990 1990 no no child child died died in in Sweden Sweden as as a a result result of of abuse. abuse.
228 228
sight sight of of the the bigger bigger picture?
31 31
tool tool for for dealing dealing with child child with abusers abusers directly, directly, but but the the abuse abuse focus focus meant meant that that the the public public lost lost
against against children, children, which which in in turn turn would would eventually eventually curb curb the the use use of of violence. violence. The The was was Bill not not a a
assault. assault. This This eventually eventually would would bring bring about about social social attitude attitude change change regarding regarding physical physical force force
The The was was Bill about about establishing establishing children children as as equal equal rights rights bearers bearers with with equal equal protection protection from from
homes."
230 230
spanked, spanked, none none would would be be spanked spanked severely, severely, thereby thereby reducing reducing deaths deaths of of children children in in their their
eliminate eliminate severe severe spankings spankings by by eliminating eliminating the the acceptance acceptance of of spanking. spanking. no no child child was was If If
limit limit gun gun ownership ownership and and therefore therefore reduce reduce death death by by guns. guns. In In the the same same vein vein you you could could
demonstrated demonstrated in in many many other other countries countries such such as as Japan Japan and and Singapore, Singapore, it it is is possible possible to to
children, children, it's it's the the parents parents who who do do it. it. Sounds Sounds somewhat somewhat silly silly to to me. me. But But as as is is
not not their their hands, hands, fists, fists, electrical electrical cords, cords, whips, whips, or or other other instruments instruments that that kill kill the the
who who kill kill people. people. But But if if you you accept accept this this reasoning, reasoning, shouldn't shouldn't it it apply apply to to spanking? spanking? is is It It
Of Of course course I I have have heard heard the the argument argument that that it it is is not not guns guns that that kill kill people, people, it it is is people people
for for parents, parents, and and there there are are cases cases where where it it "accidentally" "accidentally" leads leads to to death, death, too. too.
accidentally accidentally guns guns because were were available. available. Hitting Hitting the the kids kids is is an an available available procedure procedure
be be analogous analogous to to an an accidental accidental shooting. shooting. There There are are many many cases cases where where children children get get shot shot
them. them. Few Few think think of of hands hands as as deadly deadly weapons, weapons, but but in in a a way, way, a a severe severe spanking spanking might might
"Most "Most parents parents who who punish punish their their children children to to death death claim claim that that they they didn't didn't mean mean to to kill kill
where where what what started started out out as as discipline discipline ended ended up up as as severe severe child child abuse: abuse:
unintentionally. The The saying, saying, "give "give them them an an inch inch and and they'll they'll take take a a mile" mile" rings rings true true in in cases cases
229 229
disallowing disallowing smacking smacking is is that that when when an an avenue avenue for for hitting hitting is is open, open, people people will will abuse abuse it, it, often often
that that does does not not support support the the use use of of force force against against children. One One of of the the oft-cited oft-cited reasons reasons for for 228 228
77 77
hand" hand" NZ NZ Herald, Herald, 28110107. 28110107.
mum mum to to CYF CYF for for hand hand smack" smack" stuff.co.nz, stuff.co.nz, 28110/07; 28110/07; "Mother "Mother reported reported for for smacking smacking child's child's
28/6/07; 28/6/07; "Toddler's "Toddler's tantrum tantrum brings brings three three cops cops knocking" knocking" NZ NZ Herald, Herald, 14/8/07; 14/8/07; "School "School dobs dobs
take take my my daughter", daughter", Sunday Sunday Star Star Times Times 27/1/08; 27/1/08; "CYFS "CYFS files files on on smackers" smackers" NZ NZ Herald, Herald,
A A sample sample of of media media headlines headlines demonstrates demonstrates how how prevalent prevalent this this issue issue became: became: "Please "Please don't don't
237 237
Editor, Editor, "Ban "Ban the the rod", rod", Press, Press, 14 14 March March 2007. 2007.
236 236
Investigate Investigate 28. 28.
for for example, example, see see Nick Nick Davidson Davidson QC's QC's comments comments in in "Supernanny "Supernanny Busted" Busted" (2006) (2006) 65 65
235 235
reported reported from from the the and and Justice Electoral Electoral Committee Committee
Crimes Crimes (Abolition (Abolition of of Force Force as as Justification Justification a for for Child Child Discipline) Discipline) Amendment Amendment Bill, Bill, As As
234 234
http://www.police.govt.nz/resources/2007/section-59-activity-review/ http://www.police.govt.nz/resources/2007/section-59-activity-review/
the the Crimes Crimes (Substitued (Substitued section section 59) 59) Amendment Amendment Act Act 2007, 2007,
(Appendix (Appendix 3) 3) and and Pope, Pope, R. R. Three Three month month review review of of Police Police activity activity following following the the enactment enactment of of
Police Police Practice Practice Guide, Guide, http://www.police.govt.nz/news/release/3149.html, http://www.police.govt.nz/news/release/3149.html, 19 19 June June 2007 2007
233 233
meant meant uses uses of of force force other other than than for for the the purposes purposes of of correction correction technically technically amounted amounted to to assault. assault.
See See Chapter Chapter 3 3 for for a a discussion discussion on on the the gap gap in in the the law law prior prior to to the the 2007 2007 amendment amendment that that
232 232
address address these these concerns concerns and and to to give give parents parents further further protection protection from from prosecution. prosecution.
the the concern concern was was widespread. widespread. chapter chapter 3 I I 3 will will discuss discuss In In how how the the Bill Bill was was amended amended to to
237 237
become become involved involved only only if if there there was was a a serious serious fear fear of of child child abuse abuse occurring." Nevertheless, Nevertheless,
236 236
parents parents would would become become criminals criminals is is simply simply scare-mongering, scare-mongering, because because the the Police Police would would
are are very very unlikely unlikely to to be be prosecuted: prosecuted: The The editor editor of of the the Press Press commented commented that that the the "claim "claim that that
Electoral Electoral Committee and and other other legal experts legal that that inconsequential inconsequential or or minor minor uses uses of of force force
234 234 235 235
This This fear fear was was rife rife despite despite reassurance reassurance from from Sue Sue Bradford, Bradford, the the Police, the the and and Justice
233 233
be be criminalised criminalised for for lightly lightly smacking smacking their their children, children, or or even even for for applying applying any any force force at at al1.
232 232
One One of of the the biggest biggest reasons reasons for for opposition opposition to to the the Bill Bill was was the the fear fear that that parents parents were were going going to to
b) b) The The Criminalisation Criminalisation of of Parents. Parents.
78 78
[2001] [2001] EWHC EWHC Admin Admin 960, 960, [2002] [2002] 1 1 FLR FLR 493, 493, [2002] [2002] ELR ELR 214 214
242 242
anti-smacking anti-smacking lobby lobby in in New New Zealand, Zealand, Wycliffe Wycliffe Christian Christian Schools, Schools, Auckland, Auckland, 2006. 2006.
See See also also Drake, Drake, M. M. By By Fear Fear or or Fallacy. Fallacy. The The repression repression of of reason reason and and public public good good by by the the
"Christian "Christian schools' schools' smacking smacking plea plea fails" fails" Daily Daily Telegraph, Telegraph, London, London, 16 16 November November 2001. 2001.
241 241
Supra Supra No No 238, 238, page page 97. 97.
240 240
Supra, Supra, No. No. 37 37
239 239
psychological psychological impact impact of of physical physical abuse, abuse, Vintage Vintage Books, Books, York, York, New 1992. 1992.
arguments, arguments, see see Greven, Greven, P. P. Spare Spare the the Child/ Child/ The The religious religious roots roots of of punishment punishment and and the the
For For a a comprehensive comprehensive analysis analysis of of the the religious religious foundations foundations for for corporal corporal punishment punishment
238 238
Elias Elias pointed pointed out out that that corporal corporal punishment punishment is is not not a a religious religious conviction conviction its its in own own right: right:
the the application application of of Williamson Williamson v v Secretary Secretary of of State State for for Education Education and and Employmenr Judge Judge
42 42
equate equate to to a a breach breach of of parents' parents' rights rights to to practise practise their their religion. However, However, in in The The Queen Queen on on
241 241
Some Some religious religious arguments arguments state state that that smacking smacking is is a a "biblical "biblical mandate" mandate" and and to to ban ban it it would would
influence influence on on us."
240 240
familiar familiar are are they they to to most most of of us, us, that that it it is is often often almost almost impossible impossible to to discern discern their their actual actual
rationales. rationales. So So embedded embedded are are these these assumptions assumptions in in our our minds minds and and culture, culture, and and so so
and and perspectives perspectives generated generated over over the the centuries centuries by by American American and and European European religious religious
"Most "Most secular secular issues issues involving involving punishment punishment cannot cannot escape escape the the enduring enduring assumptions assumptions
religious religious assumptions assumptions that that exist exist in in our our culture: culture:
been been suggested suggested that that age-old age-old habits habits of of using using smacking smacking as as a a disciplinary disciplinary tool tool are are related related to to
smacking smacking did did not not rely rely on on religious religious arguments arguments to to support support their their position. However However it it has has
239 239
not not die" die" (23:13). (23:13). New New Zealand Zealand has has no no state state religion, religion, and and many many proponents proponents of of disciplinary disciplinary
and and "Withhold "Withhold not not correction correction from from the the child: child: for for if if thous thous beatest beatest him him with with the the rod, rod, he he shall shall
the the rod rod hate hate their their children, children, but but those those who who love love them them are are diligent diligent to to discipline discipline them" them" (13:24) (13:24)
statements statements such such as as "spare "spare the the rod rod and and spoil spoil the the child" child" and and proverbs proverbs such such as as "Those "Those who who spare spare
advocates advocates of of corporal corporal punishment punishment find find support support for for their their position position from from the the Bible, with with
238 238
Religion Religion played played a a significant significant role role in in the the debate debate leading leading up up the the amendment amendment of of s59. s59. Religious Religious
c) c) Religion. Religion.
79 79
University University of of Victoria. Victoria.
submissions submissions to to the the Justice Justice and and Electoral Electoral Committee Committee (2007) (2007) Health Health Services Services Research Research Centre, Centre,
Debski, Debski, S., S., Buckley, Buckley, S., S., Russell, Russell, M., M., Just Just do do who we we think think children children are? are? An An analysis analysis of of
246 246
also also www.casi.org.nz www.casi.org.nz
First First Family www.familyfirst.org.nz www.familyfirst.org.nz and and the the Kiwi Kiwi Party Party www.thekiwiparty.org.nz. www.thekiwiparty.org.nz. See See
245 245
For For the the full full statement, statement, see see Woods, Woods, Hassell Hassell and and Hook, Hook, Supra. Supra. No. No. 37, 37, pages pages 96-97. 96-97.
244 244
At At para para 45. 45.
243 243
'human 'human beings' is is not not surprising surprising 1t 1t then then that that this, this, coupled coupled with with the the public's public's
246
concerned concerned with with parental parental rights rights and and viewed viewed children children as as 'human 'human becomings' becomings' rather rather than than
(1716) (1716) made made to to the the Justice Justice and and Electoral Electoral Committee Committee showed showed that that many many people people were were
Zealand Zealand public public struggled struggled with with the the change. change. A A study study of of the the massive amount amount massive of of submissions submissions
Whatever Whatever the the reason reason behind behind the the public public resistance resistance to to the the Bill, Bill, it it was was obvious obvious that that the the New New
positions positions in in Judeo-Christian Judeo-Christian values.
245 245
campaigned campaigned for for the the right right to to smack, smack, and and a a referendum referendum on on repealing repealing the the new new s59 s59 base base their their
a a position position of of respect. respect. The The two two major major groups groups in in New New Zealand Zealand who who have have actively actively
244 244
that that Biblical Biblical assertions assertions must must be be read read in in the the light light of of Christ's Christ's teaching, teaching, which which places places children children in in
Aotearoa Aotearoa New New Zealand Zealand released released a a statement statement in in May May 2007 2007 in in favour favour of of repeal repeal of of s59, s59, stating stating
In In the the New New Zealand Zealand debate, debate, not not all all religious religious groups groups were were resistant resistant to to the the Bill. Bill. The The Bishops Bishops of of
punishment punishment and and it it could could not not be be considered considered an an integral integral part part of of the the religion. religion.
the the human human rights rights of of any any of of the the claimants, claimants, because because not not all all Christians Christians believed believed in in corporal corporal
The The judge judge in in this this case case also also pointed pointed out out that that ban ban a on on smacking smacking in in schools schools does does not not infringe infringe
parents, parents, can can properly properly be be defined defined as as a a religious religious conviction conviction in in its its own own right."
243 243
punishment, punishment, even even although although it it is is derived derived from from the the Christian Christian convictions convictions held held by by these these
families. families. Accordingly Accordingly I I do do not not accept accept that that the the belief belief in in the the desirability desirability of of corporal corporal
secure secure the the religious religious convictions convictions that that underpin underpin the the Christian Christian convictions convictions of of these these
"Corporal "Corporal punishment punishment is is not not being being invoked invoked for for its its own own sake sake but but in in order order to to help help
80 80
Supra Supra No. No. 163, 163, page page XI XI
249 249
Ritchie, Ritchie, J. J. Ritchie, Ritchie, & & J. J. Spare Spare the the Rod, Rod, George George Alien Alien and and Unwin, Unwin, Sydney, Sydney, 1981. 1981.
248 248
known known from from studies, studies, and and what what the the public public understands. understands.
the the research research is is not not reflected reflected in in public public opinion, opinion, and and there there remains remains a a gap gap between between what what is is
physical physical punishment punishment in in the the law law (in (in 2005) 2005) and and the the outcomes outcomes for for children. children. She She concludes concludes that that
and and Young Young People People (2005) (2005) Te Te 3 3 Awatea Awatea Review Review 1, 1, 14-16. 14-16. Taylor Taylor examines examines the the place place of of
Taylor, Taylor, A. A. Section Section 59: 59: Crimes Crimes Act Act 1961: 1961: The The Impact Impact of of Corporal Corporal Punishment Punishment on on Children Children
247 247
volumes volumes about about the the way way people people view view children. children.
suggests suggests giving giving people people equal equal rights rights where where they they are are not not deserved deserved or or earned, earned, and and this this speaks speaks
discrimination discrimination against against children children that that is is being being levelled. levelled. Likening Likening anti-smacking anti-smacking to to communism communism
equal equal right. right. The The right right to to hit hit did did not not belong belong to to parents parents in in the the first first place, place, it it was was a a negative negative
removing removing the the power power to to smack smack is is not not taking taking away away a a parental parental right, right, we we are are giving giving children children an an
people people are are just just as as afraid afraid to to give give up up the the power power they they have have to to hit hit their their children. children. However, However,
children children rights. rights. Communism Communism was was something something that that people people were were afraid afraid of of and and it it seems seems that that
Comparing Comparing anti-smackers anti-smackers to to communists communists demonstrates demonstrates how how people people are are scared scared of of giving giving
lose lose the the cold cold war."
249 249
liberal liberal elements elements in in our our society society that that fostered fostered permissiveness permissiveness so so that that our our country country would would
of of poisoning poisoning the the minds minds of of American American parents. parents. Somehow, Somehow, we we were were the the pinko, pinko, Commie,
who who had had a a field field day day accusing accusing me me and and all all other other child child psychologists psychologists and and fellow fellow travelers travelers
parents parents and and teachers teachers ...... I I was was stunned stunned by by the the vehemence vehemence of of the the majority majority of of the the callers callers
"She "She claimed claimed that that we we should should return return to to the the good good old old days days when when children children respected respected their their
form form of of callers callers on on talk talk back back radio: radio:
gives gives a a classic classic example example of of parental parental fear fear and and loathing loathing of of the the plight plight to to ban ban smacking, smacking, in in the the
them them and and they they have have the the potential potential to to get get parents parents into into trouble trouble with with the the law. law. Irwin Irwin A. A. Hyman Hyman
perhaps perhaps because because children children with with rights rights are are threatening, in in that that a a parent parent has less less has control control over over
248 248
being being accepted accepted as as human human beings beings with with equal equal rights. rights. Arguably, Arguably, this this scared scared a a lot lot of of people, people,
differently. differently. Children Children would would go go from from being being small, small, voiceless voiceless extensions extensions of of their their parents parents to to
resistance. resistance. To To change change the the law law would would mean mean that that people people would would have have to to view view children children
misunderstanding about about misunderstanding the the outcomes outcomes of of physical physical punishment, punishment, resulted resulted in in widespread widespread 247 247
81 81
and and the the Families Families Commission, Commission, New New Zealand, Zealand, 2006. 2006.
reasons reasons not not to to hit hit children, children, Office Office of of the the Children's Children's Commissioner, Commissioner, UNICEF UNICEF New New Zealand Zealand
Supra Supra No. No. 163, 163, page page XIII. XIII. See See also also Pritchard, Pritchard, R. R. Children Children are are Unbeatable. Unbeatable. 7 7 very very good good
250 250
it it that that changed changed its its very very essence essence and and effect. effect.
protection protection from from assault. assault. The The message message behind behind the the Bill Bill got got lost, lost, and and amendments amendments were were made made to to
deserving deserving of of the the same same human human rights rights as as else else everyone in in the the context context of of bodily bodily integrity integrity and and
managed managed to to disguise disguise the the main main purpose, purpose, which which was was to to recognise children children recognise as as citizens citizens in in society, society,
The The intense intense debate debate over over the the Bill Bill to to repeal repeal s59 s59 of of the the Crimes Crimes Act Act meant meant that that peripheral peripheral issues issues
needed needed to to be be challenged."
250 250
assumptions, assumptions, family family and and regional regional patterns patterns of of child child rearing, rearing, and and political political orientation, orientation,
what what to to do do when when children children misbehaved, misbehaved, based based on on personal personal experiences, experiences, religious religious
beliefs beliefs whether whether they they were were for for or or against against spanking spanking ...... deeply deeply These held held beliefs beliefs about about
Americans Americans whom whom I I encountered encountered were were deeply deeply and and emotionally emotionally enmeshed enmeshed in in their their
spanked, spanked, read read about about it it or or heard heard or or saw saw it it in in the the media. media. I I quickly quickly discovered discovered that that most most
"Why? "Why? Because Because almost almost everyone everyone has has either either been been spanked, spanked, observed observed someone someone being being
Hyman Hyman proposes proposes that that everyone everyone considers considers himself himself to to be be an an expert expert on on the the topic: topic:
82 82
Current Current Section Section 59(1)(a)-(d) 59(1)(a)-(d) Crimes Crimes Act Act 1961. 1961.
254 254
Amendment Amendment Act Act 2007. 2007.
Section Section 59(2)Crimes 59(2)Crimes Act Act 1961 1961 as as substituted substituted by by section section 5 5 Crimes Crimes (Substituted (Substituted Section Section 59) 59)
253 253
no no 271-1. 271-1.
Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bill2005, Bill2005,
252 252
Section Section 59 59 'Domestic 'Domestic Discipline', Discipline', Crimes Crimes Act Act 1961, 1961, prior prior to to the the 2007 2007 amendment. amendment.
251 251
could could potentially potentially disguise disguise the the use use of of force force for for the the purposes purposes of of correction. correction. Ironically, Ironically, the the law law
unproblematic unproblematic area area of of the the law, law, the the amendments amendments have have created created ambiguities ambiguities and and loopholes loopholes that that
concerned concerned about, about, which which was was 'smacking.' 'smacking.' Instead, Instead, in in an an attempt attempt to to fill fill the the gap gap in in an an already already
placate placate resistance resistance to to the the Bill, Bill, but but failed failed to to address address the the issue issue the the that public public was was most most
form form of of justification justification for for the the use use of of force force against against children children with with another. another. They They were were drafted drafted to to
The The amendments amendments made made to to the the Bill Bill have have compromised compromised its its original original purpose purpose by by replacing replacing one one
other other specified specified circumstances.
254 254
how~ver how~ver correction, correction, it it created created a a fresh fresh justification justification for for parents parents to to use use force force on on children children in in
253 253
using using force force against against children children in in circumstances circumstances where where the the force force is is used used for for the the purposes purposes of of
the the wake wake of of intense intense debate debate and and public public concern. concern. The The Amendment Amendment removed removed the the justification justification for for
its its third third reading reading however, however, the the Bill Bill had had been been amended amended to to represent represent political political a compromise, compromise, in in
simply simply
remove remove the the s59 s59 defence defence to to assault assault from from the the Crimes Crimes Act Act 1961. By By the the time time it it reached reached
252 252
Amendment Amendment Bill Bill (the (the Bill), Bill), or or as as it it came came to to be be known, known, the the 'anti-smacking 'anti-smacking bill', bill', proposed proposed to to
its its initial initial stages, stages, the the Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline)
way way of of correction correction towards towards
a a child child if if the the force force used used was was reasonable reasonable in in the the circumstances. In In
251 251
Under Under the the old old s59, s59, parent, parent, a or or person person in in the the place place of of parent, parent, a was was justified justified in in using using force force by by
Chapter Chapter 3: 3: The The Problem Problem of of Parental Parental Control. Control.
83 83
interest interest in in proceeding proceeding with with a a prosecution.] prosecution.]
force force against against a a child, child, where where the the offence offence is is considered considered to to be be so so inconsequential inconsequential that that there there is is no no public public
parent parent of of a a child child or or person person in in the the place place of of a a parent parent of of a a child child in in relation relation to to an an offence offence involving involving the the use use of of
(4) (4) To To avoid avoid doubt, doubt, it it is is affirmed affirmed that that the the Police Police have have the the discretion discretion not not to to prosecute prosecute complaints complaints against against a a
(3) (3) Subsection Subsection (2) (2) prevails prevails over over subsection subsection (1). (1).
correction. correction.
(2) (2) Nothing Nothing in in subsection subsection or or in in any any rule rule of of (1) (1) law law common justifies justifies the the use use of of force force for for the the purpose purpose of of
(d) (d) performing performing the the normal normal daily daily tasks tasks that that are are incidental incidental to to good good care care and and parenting. parenting.
(c) (c) preventing preventing the the child child from from engaging engaging or or continuing continuing to to engage engage in in offensive offensive or or disruptive disruptive behaviour; behaviour; or or
offence; offence; or or
(b) (b) preventing preventing the the child child from from engaging engaging or or continuing continuing to to engage engage in in conduct conduct that that amounts amounts to to a a criminal criminal
(a) (a) preventing preventing or or minimising minimising harm harm to to the the child child or or another another person; person; or or
if if the the force force used used is is reasonable reasonable in in the the circumstances circumstances and and is is for for the the purpose purpose of-
( ( 1) 1) Every Every parent parent of of a a child child and and every every person person in in the the place place of of a a parent parent of of the the child child is is justified justified in in using using force force
s59 s59 Parental Parental Control. Control.
specified specified circumstances. circumstances.
physically physically chastise chastise their their children children and and replacing replacing them them with with powers powers to to use use force force in in other other
"Domestic "Domestic discipline" discipline" to to "Parental "Parental Control", Control", essentially essentially removing removing the the powers powers of of parents parents to to
excuse'. excuse'. The The Amendment Amendment has has transformed transformed the the justification justification for for the the use use of of force force in in s59 s59 from from
Part Part 3 3 of of the the Crimes Crimes Act Act 1961 1961 sets sets out out the the situations situations that that qualify qualify as as 'matters 'matters of of justification justification or or
1. 1. Section Section 59 59 of of the the Crimes Crimes Act: Act: Parental Parental Control Control
achieved achieved an an equal equal status status with with adults adults with with respect respect to to bodily bodily integrity. integrity.
would would be be clearer clearer if if it it was was silent silent the the on use use of of force force against against children, children, and and children children would would have have
84 84
Supra Supra No. No. 106 106
adults, adults, and and require require protection protection and and nurture. nurture.
rights rights are are different different from from 'needs-based' 'needs-based' rights rights which which recognise recognise that that children children are are different different from from
their their incapacity. incapacity. These These rights rights recognise recognise their their status status as as individual individual persons. persons. Dignity-based Dignity-based
° °
Children Children should should not not be be denied denied basic basic human human rights rights or or 'dignity-based' 'dignity-based' rights rights by by virtue virtue of of
26
Zealand Zealand Family Family Law Law Journal267 Journal267
Von Von Dadelszen, Dadelszen, P. P. Judicial Judicial Reforms Reforms in in the the Family Family Court Court of of New New Zealand Zealand New New (2007) (2007)
punishment punishment is is inconsistent inconsistent with with this. this.
assault assault as as adults. adults. He He remarks remarks that that the the existence existence of of the the right right of of parents parents to to use use corporal corporal
premise premise that that children children are are legitimate legitimate citizens, citizens, therefore therefore they they deserve deserve the the same same protection protection from from
Judge Judge von von Dadelszen Dadelszen comments comments that that the the Care Care of of Children Children Act Act was was 2004 2004 built built on on the the
259 259
denounced denounced it it in in its its definition definition of of physical physical punishment. punishment. See See below below at at No. No. 261 261
words words of of these these articles articles do do not not specify specify corporal corporal punishment, punishment, the the Committee_has Committee_has expressly expressly
child child shall shall be be subjected subjected to to cruel, cruel, inhuman inhuman or or degrading degrading treatment treatment or or punishment." punishment." While While the the
other other person person who who has has care care of of the the child." child." Article Article 37 37 requires requires that that state state parties parties ensure ensure that that "no "no
exploitation, exploitation, including including sexual sexual abuse, abuse, while while in in the the care care of of parent(s), parent(s), guardian(s) guardian(s) legal or or any any
physical physical or or mental mental violence, violence, injury injury or or abuse, abuse, neglect neglect or or neglectful neglectful treatment, treatment, maltreatment maltreatment or or
Specifically, Specifically, Article Article 19 19 requires requires that that state state parties parties "protect "protect the the child child from from all all forms forms of of
258 258
in in the the present present Convention." Convention."
legislative, legislative, administrative administrative and and other other measures measures for for the the implementation implementation of of the the rights rights recognized recognized
Article Article 4 4 of of the the Convention Convention requires requires that that state state parties parties "undertake "undertake all all appropriate appropriate
257 257
Supra Supra No. No. 110 110
done done enough enough to to reduce reduce the the idea idea that that being being 'dependent' 'dependent' means means being being deprived deprived of of basic basic rights. rights.
children children from from being being treated treated as as fully fully autonomous. autonomous. Freeman Freeman remarks remarks that that the the convention convention hasn't hasn't
Dependency Dependency and and capacity capacity are are often often regraded regraded as as the the necessary necessary elements elements that that disqualify disqualify
256
November November 1989. 1989.
The The Convention Convention was was adopted adopted by by the the Nations Nations United General General Assembly Assembly on on the the of of 20th 20th
255 255
Committee Committee on on the the Rights Rights of of the the Child Child has has expressly expressly disapproved disapproved of of the the legal legal use use of of corporal corporal
in in every every human, and and does does not not require require capacity capacity to to be be exercised. The The United United Nations Nations
259 259 260 260
more more specifically, specifically, the the right right not not to to be be hit, hit, is is a a fundamental fundamental human human right. This This right right is is innate innate
258 258
accommodate. The The Convention Convention supports supports the the premise premise the the that right right to to bodily bodily integrity, integrity, or or
257 257
state state parties parties are are required required to to promote, promote, and and where where necessary, necessary, amend amend domestic domestic law law to to
advocate advocate full full autonomy for for children, children, the the various various articles articles set set out out fundamental fundamental rights rights which which
256 256
recognition recognition of of children children as as bearers bearers of of human human rights. rights. While While the the convention convention doesn't doesn't necessarily necessarily
New New Zealand's Zealand's ratification ratification of of UNCRC in in 1993 1993 was was a a significant significant step step towards towards the the 255 255
85 85
Ibid Ibid at at (16). (16).
264 264
Ibid Ibid page page (26). (26).
263 263
Ibid Ibid at at (4). (4).
262 262
Geneva, Geneva, 15 15 May-2 May-2 June June 2006 2006
forms forms of of punishment punishment (arts. (arts. 19; 19; 28, 28, para. para. 2; 2; and and 37, 37, inter inter alia), alia), 42nd 42nd session, session, CRC/C/GC/8, CRC/C/GC/8,
The The right right of of the the child child to to protection protection from from corporal corporal punishment punishment and and other other cruel cruel or or degrading degrading
United United Nations Nations Committee Committee on on the the Rights Rights of of the the Child Child (2006) (2006) General General Comment Comment No. No. 8, 8,
with with an an implement implement - a a - whip, whip, stick, stick, belt, belt, shoe, shoe, wooden wooden spoon, spoon, etc. etc.
light. light. Most Most involves involves hitting hitting ("smacking", ("smacking", "slapping", "slapping", "spanking") "spanking") children, children, with with the the hand hand or or
physical physical force force is is used used and and intended intended to to cause cause some some degree degree of of pain pain or or discomfort, discomfort, however however
The The Committee Committee defines defines "corporal" "corporal" or or "physical" "physical" punishment punishment as as any any punishment punishment in in which which
261 261
still still be be legally legally assaulted. assaulted. Although Although it it would would be be absurd absurd and and impractical impractical to to assert assert that that parents parents
hand, hand, it it has has once once again again set set children children apart from from apart other other groups groups in society society in as as the the group group who who can can
reassured reassured parents parents that that they they can can legally legally still use use force force on on their their children, children, however, however, on on the the other other
The The effect effect of of codifying codifying the the circumstances circumstances where where parents parents can can use use force force has, has, on on one one hand, hand,
principle principle guiding of of international international human human rights rights law."
264 264
builds builds on on this this foundation. foundation. The The dignity dignity of of each each and and every every individual individual is is the the fundamental fundamental
punishment, punishment, the the Committee Committee notes notes the the that Convention Convention on on the the Rights Rights of of the the Child Child
eliminate eliminate all all corporal corporal punishment punishment and and all all other other cruel cruel or or degrading degrading forms forms of of
and and to to equal equal protection protection under under the the law. law. In In asserting asserting States' States' obligation obligation to to prohibit prohibit and and
- upheld upheld "everyone's" "everyone's" right right to to respect respect for for his/her his/her human human dignity dignity and and physical physical integrity integrity
Covenants, Covenants, on on Civil Civil and and Political Political Rights Rights and and on on Economic, Economic, Social Social and and Cultural Cultural Rights Rights
Bill Bill of of Human Human Rights Rights - the the Universal Universal Declaration Declaration and and the the two two International International
"Before "Before the the adoption adoption of of the the Convention Convention the the on Rights Rights of of the the Child, Child, the the International International
international international human human rights rights law, law, which which state state these these that rights rights belong belong to to everyone: everyone:
human human dignity dignity and and bodily bodily integrity integrity in in the the Convention Convention was was built built upon upon principles principles in in
dignity, dignity, or or before before equality the the law. law. The The Committee Committee clearly clearly states states the the that child's child's right right to to
discipline discipline section section has has not not properly properly addressed addressed the the child's child's right right to to physical physical integrity, integrity, human human
concerns concerns in in one one respect, respect, however however the the defence defence of of reasonable reasonable force force that that replaced replaced the the domestic domestic
New New Zealand's Zealand's attempt attempt to to abolish abolish corporal corporal punishment punishment has has answered answered the the Committee's Committee's
physical physical integrity integrity and and basic basic human human dignity?
63 63
punishment as as it it disregards disregards a a child's child's right right to to be be free free from from violence and and the the right right to to
261 261 262 262
86 86
under under section section 194. 194.
Section Section 196. 196. An An assault assault provision provision specific specific to to children children and and male male assaults assaults female female exists exists
267 267
Zealand Zealand [2001] [2001] New New Zealand Zealand Law Law Review Review 1, 1, page page 3. 3.
Smacking Smacking Seriously: Seriously: The The case case for for Retaining Retaining the the Legality Legality of of Parental Parental Smacking Smacking in in New New
Ausage Ausage v v Ausage Ausage [1998] [1998] NZFLR NZFLR 72, 72, 80. 80. See See also, also, Ahdar, Ahdar, R. R. and and Alien, Alien, J., J., Taking Taking
266 266
Yv Yv Y Y Unreported, Unreported, High High Court Court Auckland, Auckland, HC HC 122/97, 122/97, 27 27 February February 1998, 1998, Baragwanath Baragwanath J. J.
265 265
another, another, directly directly or or indirectly, indirectly, or or threatening threatening by by any any act act or or gesture gesture to to apply apply such such force force
"the "the act act of of intentionally intentionally applying applying or or attempting attempting to to apply apply force force to to the the person person of of
assault assault under under the the Crimes Crimes Act Act 1961. Section Section 2 2 defines defines assault assault as: as:
267 267
Where Where there there is is no no statutory statutory justification justification for for the the use use of of force, force, an an action action technically technically amounts amounts to to
second second by by codifying codifying it. it.
correction. correction. The The Amendment Amendment has has removed removed the the first first situation, situation, and and has has tried tried to to clear clear up up the the
266 266
reasonable reasonable in in the the circumstances and, and, secondly, secondly, if if the the force force used used was was not not for for the the purposes purposes of of
265 265
ways. ways. Firstly, Firstly, if if the the force force used used for for the the purpose purpose of of correction correction was was considered considered not not to to be be
Before Before Amendment, Amendment, the parents parents could could be be found found guilty guilty of of assaulting assaulting their their children children in in two two
a) a) The The non-existence non-existence of of the the defence defence prior prior to to June June 2007 2007
The The codifying codifying of of the the parental parental control control justification justification was was unnecessary unnecessary for for several several reasons: reasons:
adults adults in in similar similar situations. situations.
their their children children to to protect protect them. them. The The common common law law already already protects protects the the use use of of force force against against
silent silent on on this this issue issue would would not not have have prevented prevented parents parents being being justified justified in in using using force force against against
adult's, adult's, we we were were not not ready ready to to do do so, so, preferring preferring a a "compromise" "compromise" instead. instead. Leaving Leaving the the law law
society, society, while while we we liked liked the the idea idea of of bringing bringing a a child's child's right right to to bodily bodily integrity integrity to to the the level level of of an an
something something about about the the way way we we view view children children as as rights rights bearers. bearers. It It tends tends to to show show that that as as a a
that that it it has has been been spelt spelt out out in in the the criminal criminal code, code, where where it it was was never never needed needed before, before, says says
should should not not have have the the ability ability to to use use force force against against their their children children in in emergency emergency situations, situations, the the fact fact
87 87
2002) 2002) Volume Volume 1, 1, 523. 523.
Brown Brown (ed) (ed) Shorter Shorter Oxford Oxford English English Dictionary Dictionary (5th (5th Edition, Edition, Oxford Oxford University University Press, Press,
268 268
in in the the law: law:
bill, bill, stated stated that that the the provisions provisions under under the the new new Parental Parental Control Control defence defence would would address address the the gap gap
The The Justice Justice and and Electoral Electoral Committee, Committee, in in recommending recommending the the amendments amendments to to Sue Sue Bradford's Bradford's
(3) (3) Chastisement, Chastisement, disciplinary disciplinary punishment; punishment; esp. esp. corporal corporal punishment punishment ...... " "
(2) (2) Reproof Reproof of of person person a for for a a fault fault of of character character or or conduct conduct
"( "( 1) 1) The The action action of of putting putting right right or or indicating indicating errors errors
from from the the Shorter Shorter Oxford Oxford English English Dictionary are: are:
268 268
The The Crimes Crimes Act Act itself itself does does not not include include a a definition definition of of correction. correction. The The relevant relevant definitions definitions
to to change change a a nappy, nappy, could could have have amounted amounted to to assault. assault.
for for the the purposes purposes of of correction, correction, but but uses uses of of force force for for other other purposes, purposes, e.g. e.g. holding holding a a child child down down
parenting parenting tasks. tasks. Technically, Technically, before before the the law law change change parents parents could could legally legally smack smack their their children children
This This does does not not include include for for the the purposes purposes of of changing changing a a nappy, nappy, for for example, example, or or other other normal normal
section section 139A 139A of of the the Education Education Act Act 1989.] 1989.]
[(3) [(3) Nothing Nothing in in subsection subsection (1) (1) ofthis ofthis section section the the justifies use use afforce afforce towards towards a a child child in in contravention contravention of of
(2) (2) The The reasonableness reasonableness of of the the force force used used is is a a question question of of fact. fact.
reasonable reasonable in in the the circumstances. circumstances.
parent parent of of a a child child is is justified justified in in using using force force by by way way of of correction correction towards towards the the child, child, if if the the force force used used is is
Every Every parent parent (1) (1) of of a a child child and, and, subject subject to to subsection subsection (3) (3) of of this this section, section, every every person person in in the the place place of of the the
59 59 Domestic Domestic discipline discipline
purposes purposes of of correction correction only. only.
Before Before the the Amendment, Amendment, s59 s59 provided provided a a defence defence for for parents parents to to use use reasonable reasonable force force for for the the
assault assault has has a a corresponding corresponding meaqing." meaqing."
on on believe reasonable reasonable grounds grounds that that he he has, has, present present ability ability to to effect effect his his purpose; purpose; and and to to
to to the the person person of of another, another, if if the the person person making making the the threat threat has, has, or or causes causes the the other other to to
88 88
See See below, below, 'the 'the availability availability of of alternative alternative defences.' defences.'
272 272
to to do do the the same same thing thing to to my my child." child." (2005) (2005) 627 627 NZPD NZPD 22086. 22086.
policeman, policeman, or or even even an an animal animal harshly harshly with with a a horse horse crop crop or or a a piece piece of of wood, wood, but but it it can can be be legal legal
do do not not understand understand at at all all why why it it is is illegal illegal in in New New Zealand Zealand to to beat beat my spouse, spouse, my another another adult, adult, a a
children children and and young young people people the the same same legal legal protection protection from from physical physical assault assault that that adults adults have. have. I I
In In the the first first reading reading of of the the Bill, Bill, Sue Sue Bradford Bradford said said about about its its purpose, purpose, is is about about giving giving "It "It
271 271
far far as as the the use use of of force force against against children children is is concerned." concerned."
the the amendment amendment is is that that parents parents and and guardians guardians will will be be "in "in the the same same position position as as everyone everyone else else so so
Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bill2005, Bill2005, no no 271-1) 271-1) it it states states that that the the effect effect of of
In In the the explanatory explanatory note note to to Sue Sue Bradford's Bradford's Members Members Bill Bill (Crimes (Crimes (Abolition (Abolition of of Force Force as as a a
27 27
from from the the Justice Justice re~orted re~orted and and Electoral Electoral Committee, Committee, page page 2. 2.
Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bill, Bill, As As
269 269
discretion. discretion.
already already existed existed in in common common law and and the the ability ability of of police police to to exercise exercise prosecutorial prosecutorial
272 272
in in defence the the past past never never caused caused any any ridiculous ridiculous outcomes, outcomes, because because checks checks and and balances balances
Prior Prior to to 2007, 2007, the the "gap "gap in in the the law" law" did did not not present present itself itself as as a a problem. problem. The The absence absence of of this this
line line with with adults', adults', the the defence defence of of Parental Parental Control Control has has set set them them apart apart again. again.
has has not not this. this. achieved While While the the removal removal of of corporal corporal punishment punishment brought brought children's children's rights rights in in
with with equal equal rights rights to to bodily bodily integrity integrity . The The inclusion inclusion of of a a new new defence defence of of reasonable reasonable force force
271 271
the the law. law. Sue Sue Bradford's Bradford's bill bill intended intended for for children children to to be be equal equal citizens citizens in in the the eyes eyes of of the the law law
270 270
undermined undermined one one of of its its crucial crucial purposes, purposes, to to give give children children equal equal from from protection assault assault under under
technically technically to to amount assault, assault, the the amendments amendments to to the the original original bid bid for for a a full full repeal repeal have have
However, However, in in attempting attempting to to legislate legislate for for parental parental uses uses of of force force in in situations situations would would that
amount amount to to an an offence." offence."
269 269
section section 59 59 the the application application of of force force from from any any motivation motivation other other than than correction correction may may
parent. parent. Additionally Additionally it it will will address address a a gap gap in in the the law, law, as as under under the the current current wording wording of of
are are not not for for the the purpose purpose of of correction correction by by parents parents and and every every person person in in the the place place of of a a
doing doing harm harm to to others. others. We We consider consider that that this this amendment amendment provides provides for for interventions interventions that that
as as protecting protecting a a child child from from harm, harm, providing providing normal normal daily daily care, care, and and preventing preventing the the child child
"The "The new new section section 59 59 clarifies clarifies that that reasonable reasonable force force may may be be used used for for other other purposes purposes such such
89 89
See See below, below, 'putting 'putting a a child child on on the the naughty naughty step.' step.'
275 275
legitimate legitimate uses uses of of force force very very widely. widely.
defence defence has has created created loopholes loopholes for for the the use use of of force force for for the the purposes purposes of of correction, correction, by by framing framing
See See below, below, 'the 'the prescriptive prescriptive quality quality of of the the parental parental control control defence.' defence.' The The parental control control parental
274 274
reported reported from from the the Justice Justice and and Electoral Electoral Committee, Committee, no no 271-2 271-2 page page 7. 7.
Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bill, Bill, As As
273 273
to to be be prosecuted prosecuted if if the the statutory statutory defence defence did did not not exist, exist, because because the the current current police police guidelines guidelines
same same token, token, a a parent parent doing doing any any of of the the things things contemplated contemplated by by s59(1)(a)(d) s59(1)(a)(d) would would be be unlikely unlikely
not not get get prosecuted. prosecuted. They They illustrate illustrate this this point point with with the the kidnapping kidnapping example example above. above. By By the the
technically technically amount amount to to an an offence, offence, however however the the reality reality of of the the situation situation means means that that parents parents will will
The The committee committee acknowledges acknowledges that that there there are are everyday everyday occurrences occurrences in in child child rearing rearing that that
parents parents were were perhaps perhaps most most the concerned concerned about. about.
275 275
point point has has created created new new ambiguities and and fails fails to to cover cover a a circumstance circumstance involving involving force force that that
274 274
purpose purpose behind behind seeking seeking repeal repeal of of s59, s59, have have been been compromised. compromised. Secondly, Secondly, over-legislating over-legislating the the
problems. problems. Firstly, Firstly, children's children's rights rights to to bodily bodily integrity integrity and and equality equality under under the the law, law, the the original original
However, However, in in attempting attempting to to achieve achieve clarity, clarity, the the amendments amendments to to the the Bill Bill have have caused caused two two main main
following following the the changes changes to to section section 59."
77 77
police police will will adopt adopt a a similar similar approach approach to to parents parents who who use use minor minor physical physical discipline discipline
police police are are not not regularly regularly prosecuting prosecuting parents parents for for this. this. We We consider consider that that logic logic dictates dictates the the
technically technically constitutes constitutes kidnapping kidnapping under under section section 209 209 of of the the Crimes Crimes Act. Act. However, However, the the
Such Such an an example example is is if if a a caregiver caregiver sends sends a a child child to to its its room room against against its its will, will, this this
potential potential offences offences directly directly related related to to the the care care of of children children that that are are rarely rarely prosecuted. prosecuted.
circumstances, circumstances, but but not not for for the the purpose purpose of of correction. correction. We We note note that that there there are are several several
amendments amendments to to the the bill bill to to clarify clarify that that parents parents may may use use reasonable reasonable force force in in some some
in in New New Zealand. Zealand. Nevertheless, Nevertheless, for for the the sake sake of of clarity, clarity, we we have have recommended recommended
lead lead to to the the prosecution prosecution of of large large numbers numbers of of parents parents and and persons persons in in the the place place of of parents parents
results results of of the the bill bill as as introduced. introduced. We We do do not not consider consider that that the the repeal repeal of of section section 59 59 will will
"We "We consider consider that that there there is is widespread widespread misunderstanding misunderstanding about about the the purpose purpose and and possible possible
misunderstanding, misunderstanding, rather rather than than a a genuine genuine need need to to have have the the gap gap in in the the law law filled. filled.
conceded conceded that that the the purpose purpose of of the the amendments amendments is is clarity clarity in in the the wake wake of of widespread widespread
In In recommending recommending the the to to changes the the original original Bill, Bill, the the Justice Justice and and Electoral Electoral Committee Committee
90 90
Committee, Committee, 8 8 November November 2006. 2006.
Options Options for for Consideration, Consideration, Report Report of of the the Law Law Commission Commission for for the the Justice Justice and and Electoral Electoral
Copeland Copeland MP, MP, 21 21 March March 2007, 2007, page page 5. 5. Reference Reference to to Palmer, Palmer, G., G., Section Section 59 59 Amendment: Amendment:
Amendment Amendment Bill- Effect Effect on on Parental Parental Corrective Corrective Action, Action, legal legal opinion opinion prepared prepared for for Gordon Gordon
McKenzie, McKenzie, P. P. Crimes Crimes (Abolition (Abolition of of Force Force as as a a justification justification for for Child Child Discipline) Discipline)
277 277
Prosecution Prosecution Guidelines, Guidelines, Crown Crown Law Law Office, Office, March March 1992, 1992, para para 3.3.1 3.3.1 (See (See Appendix Appendix 4) 4)
276 276
already already provides provides justification justification for for the the use use of of force force to to prevent prevent suicide suicide or or certain certain offences offences in in s41. s41.
In In addition addition to to the the defence defence of of necessity necessity for for the the actions actions described described above, above, the the Crimes Crimes Act Act 1961 1961
circumstances" circumstances" justifies justifies the the accused accused breaking breaking the the law. law.
277 277
injury injury to to the the accused, accused, but but also also danger danger to to another another person person where where "necessity "necessity of of
may may be be not not available only only if if there there are are grounds grounds of of imminent imminent peril peril of of death death or or serious serious
CRNZ CRNZ 49 49 (CA) (CA) and and Police Police v. v. Kawiti Kawiti [2000] [2000] 1 1 NZLR NZLR 117 117 that that the the defence defence of of necessity necessity
14. 14. The The Courts Courts have have recognised recognised in in cases cases such such as as Kapi Kapi v. v. Ministry Ministry of of Transport Transport (1991) (1991) 8 8
removing removing an an offensive offensive weapon weapon or or seriously seriously harmful harmful drugs drugs from from a a child. child.
law law cover cover interventions interventions such such as as restraining restraining a a child child from from walking walking in in front front of of traffic traffic and and
disruptive disruptive behaviour. behaviour. In In my my opinion, opinion, the the defence defence of of necessity necessity would would under under the the present present
prevent prevent harm harm to to the the child child or or prevent prevent the the child child from from engaging engaging in in criminal criminal activity activity or or
by by s.20 s.20 of of the the Crimes Crimes Act Act is is likely likely to to cover cover interventions interventions which which are are needed needed in in order order to to
Law Law Commission Commission suggests. suggests. The The common common law law defence defence of of necessity necessity which which is is preserved preserved
currently" currently" (the (the Law Law Commission Commission emphasis). emphasis). I I doubt doubt that that the the gap gap is is as as wide wide as as the the
59, 59, the the application application offorcefrom offorcefrom any any motivation motivation other other than than correction correction is is an an offence offence
cover cover a a gap gap in in the the law law that that needed needed to to be be addressed, addressed, "because, "because, on on the the wording wording of of section section
disciplinary disciplinary interventions which which interventions parents parents are are permitted permitted to to make make under under subclause subclause (1) (1)
13. 13. The The Law Law Commission Commission in in para.8 para.8 of of its its report, report, expressed expressed the the view view that that the the non
their their codification codification somewhat somewhat unnecessary. unnecessary.
defence defence of of necessity necessity would would have have potentially potentially covered covered some some of of the the situations situations in in s59(1), s59(1), making making
existing existing common common law law defence defence adequately adequately covers covers it. it. Peter Peter McKenzie McKenzie QC QC points points out out that that the the
The The lack lack of of statutory statutory defence defence for for particular particular a action action does does not not leave leave a a "gap "gap in in the the law" law" if if an an
b) b) The The availability availability of of alternative alternative defences defences
child child intended intended to to protect protect them them from from harm, harm, or or holding holding a a child child down down while while changing changing a a nappy. nappy.
Obviously, Obviously, there there is is little little public public interest interest in in prosecuting prosecuting a a parent parent for for the the use use of of force force against against a a
recommend recommend that that there there should should be be public public interest interest in in proceeding proceeding with with prosecution. a 276 276
91 91
assault. assault.
[1984] [1984] 1 1 W.L.R. W.L.R. 1173. 1173. In In this this case case it it was was held held that that everyday everyday jostling jostling does does not not constitute constitute
282 282
Adams Adams on on Criminal Criminal Law, Law, para para CA CA 59.03, 59.03, accessed accessed 6 6 March March 2008 2008
281 281
° °
Crimes Crimes Act Act 1961, 1961, s48. s48.
28
Adams Adams on on Criminal Criminal Law, Law, para para CA CA 59.03, 59.03, accessed accessed 6 6 March March 2008 2008
restricted restricted to to "crime" "crime" only. only.
parents parents in in s59(1)(b) s59(1)(b) extends extends to to the the prevention prevention of of offence offence by by virtue virtue of of the the fact fact it it is is not not any any
Adams Adams suggests suggests that that the the word word "criminal" "criminal" is is unhelpful, unhelpful, and and that that the the power power conferred conferred on on
279 279
Crimes Crimes Act Act 1961. 1961.
278 278
accepted accepted in in New New Zealand Zealand before before we we felt felt the the to to codify codify them. them. ne~d ne~d
of of daily daily life". life". This This might might include include parental parental uses uses of of force force that that have have always always been been generally generally
law law might might excuse excuse "all "all physical physical contact contact which which is is generally generally acceptable acceptable in in the the ordinary ordinary conduct conduct
force force upon upon their their bodies, bodies, Lord Lord Justice Justice Goff Goff in in Collins Collins v v Wilcock suggests suggests the the that common common
282 282
While While it it would would be be difficult difficult to to establish establish that that children children impliedly impliedly consent consent to to everyday everyday uses uses of of
an an objective objective standard."
281 281
the the accused's accused's belief belief in in the the circumstances circumstances justifying justifying their their actions actions falls falls to to be be tested tested by by
another another [s48] [s48] ...... However However it it confers confers a a somewhat somewhat narrower narrower defence defence than than s48 s48 insofar insofar as as
"Subsection "Subsection 1(a) 1(a) is is self-explanatory self-explanatory and and largely largely replicates replicates self-defence/defence self-defence/defence of of
self self defence:
280 280
Adams Adams on on Criminal Criminal Law Law points points out out that that s59(1)(a) s59(1)(a) is is unnecessary unnecessary because because it closely closely it resembles resembles
rather rather than than "crime", "crime", which which is is defined defined in in Section Section 2 2 of of the the Crimes Crimes Act Act 1961.
279 279
contemplated contemplated in in s59(1)(b). s59(1)(b). However, However, it it is is strange strange that that the the words words "criminal "criminal offence" offence" were were used used
Arguably, Arguably, this this defence defence would would have have been been sufficient sufficient to to cover cover the sorts sorts the of of situations situations
believes, believes, on on reasonable reasonable grounds, grounds, would, would, if if committed, committed, amount amount to to suicide suicide or or to to any any such such offence. offence.
serious serious injury injury to to the the person person or or property property of of any any one, one, or or in in order order to to prevent prevent any any act act being being done done which he he which
commission commission of of suicide, suicide, or or the the commission commission of of an an offence offence would would which be be likely likely to to cause cause immediate immediate and and
Every Every one one is is justified justified in in using using such such force force as as may may be be reasonably reasonably necessary necessary in in order order to to prevent prevent the the
41. 41. Prevention Prevention of of suicide suicide or or certain certain offences 278 278
92 92
At At 158 158
286 286
[1996] [1996] 1 1 NZLR NZLR 153 153
285 285
Sentencing Sentencing Act Act 2002 2002 Section Section 107 107
284 284
Act Act Sentencing 2002 2002 Section Section 106 106
283 283
amounts amounts to to a a fresh fresh defence defence of of reasonable reasonable force. force.
parents parents or or persons persons in in the the place place of of a a parent parent can can invade invade a a child's child's integrity, integrity, bodily in in what what
not not in in the the public public interest interest or or are are inconsequential. inconsequential. Thirdly, Thirdly, it it sets sets out out circumstances circumstances the where where
corporal corporal punishment. punishment. Secondly, Secondly, it it affirms affirms the the police police discretion discretion not not to to prosecute prosecute cases cases that that are are
The The amended amended s59 s59 has has three three purposes. purposes. Firstly, Firstly, it it removes removes the the justification justification for for the the use use of of
2. 2. The The prescriptive prescriptive quality quality of of the the Parental Parental Control Control defence defence
been been caught caught by by the the safeguards safeguards that that we we already already have have in in our our law, law, as as demonstrated demonstrated above. above.
Discipline Discipline had had simply simply been been repealed, repealed, the the trivial trivial uses uses of of force force for for any any purpose purpose would have have would
prohibited. prohibited. If, If, as as Sue Sue Bradford's Bradford's original original Bill Bill intended, intended, the the s59 s59 defence defence of of Domestic Domestic
Control Control provision, provision, because because the the use use of of force force for for the the purposes purposes of of correction correction is is explicitly explicitly
A A similar similar case case involving involving a a parent parent would would not not have have had had the the same same result result under under the the new new Parental Parental
conviction conviction ...... "
286 286
pat pat on on the the bottom. bottom. Although Although technically technically assault, assault, it it did did not not merit merit the the stigma stigma of of a a
"There "There was was no no justification justification for for treating treating the the incident incident as as involving involving anything anything more more than than a a
for for smacking smacking a a child child on on the the bottom: bottom:
v v Hendi illustrates illustrates this this point, point, where where a a creche creche worker worker was was discharged discharged without without conviction conviction
85 85
technically technically amount amount to to assault, assault, in in absence absence the of of the the unnecessary unnecessary parental parental control control provision. provision. R R
would would be be one one more more safeguard safeguard against against parents parents being being prosecuted prosecuted for for uses uses of of force force that that
consequences consequences of of a a conviction conviction would would be be out out of of proportion proportion to to the the gravity gravity of of the the offence. offence. This This
284 284
Finally, Finally, judges judges have have the the power power to to discharge discharge without without conviction where where the the indirect indirect 283 283 Section 59(1)(a)-(d) is intended to fill the gap in the law, to provide a statutory defence for parents in situations where technically their use of force would amount to assault. However, by setting out all of the situations in which a child's bodily integrity can be legitimately invaded, the amended s59 has developed a prescriptive quality. In essence, by listing all of the circumstances where children do not have the right to bodily integrity, it demonstrates that children are not equal citizens deserving of equal rights. Before the amendment, children enjoyed the same right to bodily integrity as adults in the Crimes Act, except of course when the force used on them was for the purposes of correction. Now that the correction defence has been removed, it would be logical to think that children would be completely equal to adults, however the amendments have prevented that from happening. What we are left with is an exhaustive, unnecessary and largely ambiguous list of ways parents can use force
against their children. For example, subsection (l)(c) allows parents to use force to prevent the child from engaging in offensive or disruptive behaviour. Woods, Hassell and Hook
suggest that this provision seeks to cover the situation of a child having a tantrum in a
supermarket, to allow a parent to remove or restrain the child, as opposed to smacking to stop the anti-social behaviour.287 However, there is no requirement in s59(1)(c) that the behaviour be public, or that any person needs to be disturbed or offended by it. 288 The term is
deliberately vague to cover a whole host of situations, but the sorts of situations contemplated
by this provision would probably be such minor instances of assault, there would be no
public interest in prosecuting them anyway?89
287 Supra No. 37, page 85. 288 Adams on Criminal Law, para CA 59.03, accessed 6 March 2008 289 Supra No. 276, para 3.3. (Appendix 4)
93
94 94
lbid, lbid, page page 3 3
293 293
Police Police Practice Practice Guide Guide for for new new Section Section 59, 59, 19 19 June June 2007, 2007, page page 2 2 (Appendix (Appendix 3) 3)
292 292
reasonable reasonable force force listed listed in in s59(1) s59(1) will will become. become.
reasonableness reasonableness of of the the force force used. used. The The older older the the child child gets, gets, the the less less justifiable justifiable the the uses uses of of
Families Families Act Act 1989. 1989. The The practice practice guide guide suggests suggests the the that age age of of the the child child will will impact impact on on the the
means means a a person person of of 14 14 years years of of age age or or under under in in the the Children, Children, Young Young Persons Persons and and Their Their
"Child" "Child" means means a a person person 17 17 years years of of age age or or under under in in the the Care Care of of Children Children Act Act 2004, 2004, but but
292 292
Adams Adams on on Criminal Criminal Law, Law, para para CA CA 59.01, 59.01, accessed accessed 6 6 March March 2008 2008
291 291
of of force force within within one one of of the the four four situations situations set set out out in in s59(1). s59(1). See See example example on on page page 93. 93.
establish. establish. The section section The is is so so vague vague that that it it would would be be relatively relatively easy easy to to reclassify reclassify a a corrective corrective use use
the the purposes purposes of of correction correction lies lies in in the the motive motive of of the the parent, parent, and and this this may may often often be be difficult difficult to to
The The difference difference between between legitimate legitimate uses uses of of force force in in s59(1)(a)-(d) s59(1)(a)-(d) and and the the uses uses of of force force for for
290 290
compliance compliance (s (s 59(1)(d))."
293 293
be be for for the the purposes purposes of of restraint restraint (s (s 59(l)(a) 59(l)(a) to to (c)) (c)) or, or, by by way way of of example, example, to to ensure ensure
Any Any force force used used must must not not be be for for the the purposes purposes of of correction correction or or punishment; punishment; it it may may only only
objectively objectively reasonable. reasonable.
will will justify justify the the use use of of force. force. The The use use of of force force must must be be both both subjectively subjectively and and
parents parents act act must in in good good faith faith and and have have a a belief belief reasonable in in a a state state of of facts facts which which
"No "No definitions definitions are are offered offered about about what what constitutes constitutes reasonable reasonable force. force. In In using using force force
reasonable reasonable in in the the circumstances" circumstances" reads: reads:
to to fill fill the the gap, gap, which which itself itself in is is problematic. problematic. For For example, example, the the guideline guideline for for "force "force used used is is
(Appendix (Appendix 3) 3) highlights highlights the the lack lack of of formal formal definitions, definitions, and and consequently consequently there there is is an an attempt attempt
Electoral Electoral Committee Committee was was trying trying to to clear clear up up the the law law in in this this area. area. The The Police Police Practice Practice Guide Guide
have have still still not not been been defined defined by by this this amendment, amendment, which which is is strange strange seeing seeing as as the the Justice Justice and and
The The terms terms "child", "person "person in in the the place place of of a a parent", parent", "reasonable "reasonable force" force" and and "correction" "correction"
292 292
used used to to correct correct a a child child and and the the listed listed 'legitimate' 'legitimate' uses uses of of force.
291 291
specificity, specificity, and and failure failure to to define define terms terms has has perhaps perhaps blurred blurred the boundary the between between force force
290 290
maximise maximise the the cover cover for for potential potential situations situations where where parents parents use use force. force. However, However, the the lack lack of of
The The justification justification of of parental parental force force in in s59(1) s59(1) has has presumably presumably been been drafted drafted in in such such a a way way as as to to
95 95
the the police police with with too too much much discretion, discretion, because because invariably invariably the the outcomes outcomes would would be be inconsistent. inconsistent.
discretional discretional responsibility responsibility entrusted entrusted in in the the police. police. He He felt felt there there that was was a a danger danger leaving leaving in
Supra Supra No. No. 277, 277, page page 8 8 Peter Peter McKenzie McKenzie QC QC expressed expressed a a concern concern for for the the amount amount of of
294 294
difficult difficult task task for for the the prosecutor prosecutor to to establish establish the the motive motive behind behind the the force. force. Reasonable Reasonable force force is is
hand hand instead instead of of taking taking him him to to his his room, room, the the same same justification justification could could be be raised, raised, and and it it makes makes a a
offended offended or or disturbed. disturbed. By By the the same same token, token, if if the the parent parent gave gave the the a a child small small smack smack the the on
require require the the behaviour behaviour to to be be public, public, or or for for it it to to be be established established that that anyone anyone was was actually actually
from from continuing continuing to to engage engage in in offensive offensive or or disruptive disruptive behaviour. behaviour. This This justification justification does does not not
however however parent parent a could could reasonably reasonably justify justify the the action action under under s59(1) s59(1) as as preventing preventing the the child child
there there has has technically technically been been an an assault assault (see (see below, below, 'putting 'putting the the child child the the on naughty naughty mat'), mat'),
if if the the parent parent picks picks the the child child up up and and puts puts him him in in his his room room as as punishment punishment for for his his behaviour, behaviour,
this this point. point. Similarly, Similarly, consider consider the the scenario scenario where where a a child child is is talking talking back back to to his his parent parent at at home; home;
the the purposes purposes of of correction correction in in s59(2). s59(2). The The above above example example of of the the police police definition definition illustrates illustrates
justifications justifications in in s59(1) s59(1) could could potentially potentially be be used used as as a a 'loophole' 'loophole' to to the the prohibition prohibition of of force force for for
This This ambiguity ambiguity in in an an amendment amendment which which is is to to meant provide provide clarity clarity means means that that the the
addition addition to to its its inconsequentiality. inconsequentiality.
because because the the police police would would not not have have had had to to assess assess the the motive motive behind behind each each use use of of force, force, in in
be be indistinguishable. This This problem problem would would not not exist exist if if s59 s59 had had simply simply been been repealed, repealed,
294 294
prosecutor prosecutor to to distinguish distinguish the the purpose purpose behind behind the the use use of of force, force, that that in in some some circumstances circumstances may may
or or whether whether it it was was for for the the purposes purposes of of correction. correction. Too Too much much responsibility responsibility is is left left with the the with
in in cases cases some it it would would be be difficult difficult to to assess assess whether whether the the force force used used was was to to ensure ensure compliance, compliance,
Arguably, Arguably, the the definitions definitions of of 'ensuring 'ensuring compliance' compliance' and and 'correction' 'correction' interchangeable, interchangeable, are and and
This This definition definition reads reads into into s59(1)(d) s59(1)(d) the the legitimate legitimate use use of of force force to to ensure ensure compliance. compliance.
96 96
of of Peter Peter McKenzie McKenzie QC, QC, Table Table in in Parliament Parliament on on 13 13 March March 2007, 2007, (2007) (2007) 637 637 NZPD NZPD 7871. 7871.
Palmer., Palmer., G., G., Law Law Commission, Commission, Crimes Crimes (Substituted (Substituted Section Section 59) 59) Amendment Amendment Bill: Bill: Opinion Opinion
295 295
correction. correction.
they they have have helped helped to to achieve achieve successful successful abolition abolition of of all all uses uses of of force force for for the the purposes purposes of of
cases. cases. It It is is difficult difficult to to see see then then how how the the amendments amendments to to the the Bill Bill added added further further clarity clarity or or how how
the the legitimate legitimate use use of of force force is is often often difficult, difficult, and and might might preclude preclude prosecution prosecution in in contentious contentious
In In other other words, words, the the differentiation differentiation between between the the use use of of force force for for the the purpose purpose of of correction correction and and
against against the the likelihood likelihood of of prosecution. prosecution. "
295 295
could could ever ever properly properly convict convict a a parent parent beyond beyond reasonable reasonable doubt, doubt, which which in in turn turn may may tell tell
include include other other permitted permitted purposes. purposes. is is thus thus questionable questionable whether whether It It in in such such cases cases a a jury jury
which which may may include include prohibited prohibited correctional correctional purposes, purposes, but but in in all all likelihood likelihood will will also also
vast vast majority majority of of "time "time out" out" cases, cases, parents parents will will be be prompted prompted by by a a mix mix of of motives, motives,
discretion, discretion, to to assess assess the the likelihood likelihood of of achieving achieving a a conviction. conviction. We We suggest suggest that, that, in in the the
General's General's Prosecution Prosecution Guidelines" Guidelines" require require prosecutors, prosecutors, in in the the exercise exercise of of their their
However, However, in in this this regard, regard, there there is is a a very very important important point point to to note. note. The The "Solicitor
jury. jury.
discretion discretion and, and, ultimately ultimately (if (if the the discretion discretion is is taken taken to to prosecute) prosecute) the the decision decision of of a a
when when force force has has been been used used to to achieve achieve "time "time out". out". It It will will be be a a matter matter for for prosecutorial prosecutorial
for for us us to to provide provide blanket blanket a reassurance reassurance that that prosecution prosecution will will never never be be appropriate appropriate
of of fact fact that that varies varies in in the the circumstances circumstances of of each each case. case. This This means means that that it it is is impossible impossible
"We "We need need to to emphasise emphasise that, that, in in any any given given case, case, the the parental parental motive motive will will be be a a question question
cloud cloud the the issue: issue:
The The Law Law Commission Commission highlights highlights the the fact fact that that the the requirement requirement that that motive motive is is established established may may
clarified clarified matters matters to to a a degree degree that that warrants warrants existence existence their in in the the first first place. place.
unlikely unlikely to to be be prosecuted. prosecuted. However However it it demonstrates demonstrates that that the the amendments amendments have have not not sufficiently sufficiently
discipline. discipline. Of Of course, course, this this kind kind of of situation situation is is so so inconsequential inconsequential that that it it would would be be very very
form form of of reasonable reasonable force force against against their their children, children, so so long long as as the the intention intention behind behind the the force force is is not not
not not defined defined in in s59, s59, therefore therefore 'smacking' 'smacking' is is not not specifically specifically banned. banned. Parents Parents may may still still use use any any
97 97
police police discretion discretion is is "a "a little little superfluous, superfluous, as as the the Police Police have have this this discretion discretion in in any any case." case."
Supra Supra No. No. 259. 259. Judge Judge Paul Paul von von Dadelszen Dadelszen remarks remarks that that the the addition addition of of the the affirmation affirmation of of
298 298
lbid, lbid, 183-184. 183-184.
297 297
Supra Supra No. No. 37, 37, page page 183. 183.
296 296
ensure ensure that that the the Bill Bill made made it it through through its its final final reading, reading, by by calming calming the the nerves nerves of of those those who who
inconsequential inconsequential offences offences is is unusual unusual and and unnecessary. The The purpose purpose of of its its inclusion inclusion was was to to
298 298
However, However, the the inclusion inclusion of of an an affirmation affirmation the the that police police have have discretion discretion not not to to prosecute prosecute
existed existed was was enough enough to to reassure reassure those those who who feared feared a a change change in in the the law law would would bring bring the the worst. worst.
resolve resolve the the 'impasse' 'impasse' . appeared appeared that that It It a a simple simple recognition recognition of of something something already already that
297 297
the the amendment. amendment. There There were were speeches speeches applauding applauding the the cooperation cooperation of of people people who who worked worked to to
leader leader of of the the opposition opposition formed formed a a united united front, front, the the House House voted voted overwhelmingly overwhelmingly in in favour favour of of
of of Representatives. Representatives. Following Following an an historic historic press press conference conference where where the the Prime Prime Minister Minister and and
current current practical practical situation, situation, seemed seemed to to be be the the magical magical cure cure for for the the major major discord discord in in the the House House
support support the the Bill. Bill. Affirmation Affirmation of of the the police police discretion, discretion, while while it it did did nothing nothing to to change change the the
Amendment Amendment was was also also approved approved by by the the leader leader of of the the opposition, opposition, in in political political a about-turn about-turn to to
Geoffrey Geoffrey Palmer, Palmer, who who then then gained gained the the approval approval of of the the bill's bill's creator, creator, Sue Sue Bradford. Bradford. The The
the the Bill. was was the the work work It It of of Prime Prime Minister, Minister, Helen Helen Clark, Clark, and and former former Prime Prime Minister, Minister,
296 296
The The inclusion inclusion of of this this affirmation affirmation was was to to further further address address public public and and political political anxieties anxieties about about
public public interest interest in in proceeding proceeding with with a a prosecution. prosecution.
use use of of force force against against a a child, child, where where the the offence offence is is considered considered to to be be so so inconsequential inconsequential that that there there is is no no
a a parent parent of of a a child child or or person person in in the the place place of of a a parent parent of of a a child child in in relation relation to to an an offence offence involving involving the the
(4) (4) To To avoid avoid doubt, doubt, it it is is affirmed affirmed that that the the Police Police have have the the discretion discretion not not to to prosecute prosecute complaints complaints against against
Section Section 59(4) 59(4) affirms affirms the the police police discretion discretion not not to to prosecute prosecute offences. offences. certain
3. 3. The The effect effect of of police police affirming discretion. discretion.
98 98
the the prosecutor prosecutor to to ask ask whether whether there there is is sufficient sufficient reliable reliable and and admissible admissible evidence evidence that that an an
decision decision to to prosecute prosecute or or not not to to prosecute. prosecute. The The first first is is evidential evidential sufficiency, sufficiency, which which requires requires
prosecute prosecute an an offence. offence. Two Two major major factors factors must must be be taken into into taken account account when when making making the the
The The existing existing prosecuting prosecuting guidelines guidelines assist assist the the police police with with the the decision decision of of whether whether or or not not to to
a) a) Police Police discretion discretion already already exists exists
for for problematic judicial judicial review review of of police police discretion. discretion.
the the perception perception of of children children as as equal equal rights rights bearers, bearers, but but its its inclusion inclusion in in statute statute might might also also be be
The The damage damage is is not not confined confined to to children's children's rights. rights. The The affirmation affirmation of of police police discretion discretion dilutes dilutes
between between adults adults and and children children with with respect respect to to bodily bodily integrity. integrity.
are are the.same. the.same. This This goes goes against against the the essence essence of of the the Bill, Bill, which which sought sought to to remove remove distinctions distinctions
to to apply apply the the same same laws laws to to children children as as are are applied applied to to adults, adults, despite despite the the fact fact that that the the end end results results
classification classification of of children children into into a a subset subset of of human human beings. beings. Seemingly, Seemingly, the the public public were were unwilling unwilling
police police discretion discretion as as it it applies applies to to child child discipline discipline and and abuse abuse cases cases is is indicative indicative of of the the
and and essence essence of of the the Bill. Bill. The The fact fact there there was was perceived perceived a need need to to make make explicit explicit mention mention of of
actually actually does does more more than than damage good, good, because because it it seriously seriously compromises compromises the the entire entire purpose purpose
achieve achieve the the original original purpose. purpose. In In this this case, case, the the inclusion inclusion of of an an affirmation affirmation of of police police discretion discretion
should should never never be be getting getting it it passed passed in in to to law, law, rather rather it it should should be be because because it it is is necessary necessary to to
bearing bearing citizens. citizens. The The motivation motivation for for including including an an additional additional point point to to piece piece a of of legislation legislation
most most damaging damaging to to our our perception perception of of children children in in New New Zealand Zealand and and their their status status as as equal equal rights rights
provision. provision. While While it it was was successful successful in in getting getting the the law law passed, passed, its its overall overall effect effect is is perhaps perhaps the the
sense, sense, its its inclusion inclusion is is more more of of political political a tool tool than than a a necessary necessary element element of of the the parental parental control control
feared feared the the prosecution prosecution of of parents parents was was going going to to be be widespread widespread and and out out of of control. control. In In that that
99 99
Supra Supra No. No. 276, 276, para para 3. 3. (Appendix (Appendix 4) 4)
299 299
prosecution prosecution will will not not be be in in the the public public interest interest unless unless it it is is more more likely likely than than not not that that it it
prosecution prosecution is is required required in in the the public public interest. interest. They They also also state state that that ordinarily ordinarily a a
Prosecution Prosecution Guidelines. Guidelines. The The guidelines guidelines state state that that police police must must decide decide whether whether a a
were were advised advised that that all all prosecution prosecution decisions decisions are are guided guided the the by Solicitor-General's Solicitor-General's
matter matter for for police police discretion, discretion, although although private private prosecutions prosecutions remain remain a a possibility. possibility. We We
of of a a parent parent for for the the use use of of force force against against children children for for the the purpose purpose of of correction correction will will be be a a
"As "As with with any any other other offence, offence, the the prosecution prosecution of of parents parents and and every every person person in in the the place place
Committee Committee when when they they recommended recommended the the amendments amendments to to the the original original bill. bill.
The The fact fact that that this this discretion discretion already already exists was was exists considered considered by by the the Justice Justice and and Electoral Electoral
sentencing sentencing options options available available to to the the Court.
299 299
p) p) the the likely likely sentence sentence imposed imposed in in the the event event of of conviction conviction having having regard regard to to the the
n) n) the the likely likely and and length expense expense of of the the trial; trial;
oppressive; oppressive;
k) k) whether whether the the consequences consequences of of any any resulting resulting conviction conviction would would be be unduly unduly harsh harsh and and
j) j) the the prevalence prevalence of of the the alleged alleged offence offence and and the the need need for for deterrence; deterrence;
i) i) the the availability availability of of proper proper alternatives alternatives to to prosecution; prosecution;
the the effect effect f) f) of of a a decision decision not not to to prosecute prosecute on on public public opinion; opinion;
e) e) the the degree degree of of culpability culpability of of the the alleged alleged offender; offender;
b) b) all all mitigating mitigating and and aggravating aggravating circumstances; circumstances;
conduct conduct really really warrants warrants the the intervention intervention of of the the law; law;
a) a) the the seriousness seriousness or, or, conversely, conversely, the the triviality triviality of of the the alleged alleged offence; offence; i.e. i.e. whether whether the the
relevant relevant factors factors in in a a decision decision assault child might might be: be:
factors factors to to be be considered considered when when assessing assessing the the public public interest interest in in prosecution. prosecution. Some Some of of the the more more
there there is is public public interest interest in in proceeding proceeding with with prosecution. prosecution. The The guidelines guidelines set set out out 16 16 additional additional
directed directed jury jury could could find find the the person person guilty guilty beyond beyond reasonable reasonable doubt. doubt. The The second second is is whether whether
offence offence has has been been committed committed by by particular particular a person, person, and and additionally additionally whether whether properly properly a
100 100
Ibid Ibid page page 7. 7.
301 301
reported reported from from the the Justice Justice and and Electoral Electoral Committee, Committee, page page 5 5 (Appendix (Appendix 2) 2)
° °
Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bill, Bill, As As
30
discretion. discretion. John John Key, Key, leader leader of of the the opposition opposition party, party, in in explaining explaining his his support support for for the the
about about the the use use of of corrective corrective force force was was weakened, weakened, by by the the inclusion inclusion of of an an affirmation affirmation of of police police
over over anything anything in in subsection subsection Unfortunately, Unfortunately, 1. 1. the the by third third stage stage of of the the Bill Bill even even the the message message
use use of of force, force, and and subsection subsection 3 3 reinforces reinforces the the importance importance of of this this message message by by making making it it prevail prevail
about about the the use use of of force force for for the the purposes purposes of of correction. correction. Subsection Subsection 2 2 specifically specifically prohibits prohibits this this
children children but but not not adults. adults. At At least, least, however, however, in in the the second second stage stage the the message message was was very very clear clear
purpose purpose by by creating creating amendments amendments would would that legitimise legitimise certain certain forms forms of of force force used used against against
adults. adults. In In the the second second stage stage of of the the Bill Bill the the Justice Justice and and Electoral Electoral committee committee deviated deviated from from that that
Repealing Repealing s59 s59 was was supposed supposed to to put put children's children's right right to to bodily bodily integrity integrity on on an an equal equal level level with with
b) b) How How s59( s59( effects effects the the underlying underlying message message of of the the provision provision 4) 4)
use use of of minor minor physical physical discipline."
301 301
lead lead to to a a large large increase increase in in convictions convictions or or the the removal removal of of children children from from their their families families for for the the
remarked remarked "We "We do do not not believe believe that that the the changes changes we we have have proposed proposed to to section section 59 59 of of the the Act Act will will
did did not not recommend recommend an an affirmation affirmation of of police police discretion discretion within within the the words words of of the the Act, Act, and and
would would not not lead lead to to a a significant significant increase increase in in prosecutions. prosecutions. The The Justice Justice and and Electoral Electoral Committee Committee
This This recognition recognition of of existing existing police police discretion discretion supported supported their their belief belief that that a a change change in in law law
it it is is in in the the public public interest interest and and there there is is sufficient sufficient evidence".
300 300
Solicitor-General's Solicitor-General's Prosecution Prosecution Guidelines, Guidelines, a a prosecution prosecution should should proceed proceed only only where where
prosecution prosecution are are available available to to police, police, including including warnings warnings and and cautions. cautions. Under Under the the
prosecuted prosecuted for for minor minor acts acts of of physical physical punishment. punishment. Various Various options options other other than than formal formal
minimise minimise the the likelihood likelihood of of parents parents and and every every person person in in the the place place of of a a parent parent being being
will will result result in in a a conviction conviction ...... There There are are safeguards safeguards in in the the criminal criminal justice justice system system to to
101 101
Commission Commission for for the the Justice Justice and and Electoral Electoral Committee, Committee, 8 8 November November 2006. 2006.
Palmer, Palmer, G., G., Section Section 59 59 Amendment: Amendment: Options Options for for Consideration, Consideration, Report Report of of the the Law Law
corporal corporal punishment punishment altogether. altogether. This This is is obviously obviously not not the the option option the the Committee Committee chose. chose.
a a or or weapon tool; tool; causes causes injury injury that that is is more more than than transient transient or or trifling), trifling), rather rather than than abolishing abolishing
providing providing a a non-exhaustive non-exhaustive list list of of conduct conduct which which is is to to be be considered considered unreasonable unreasonable (e.g. (e.g. use use of of
Chester Chester Burrows Burrows MP. MP. This This option option would would resemble resemble the the s59 s59 equivalent equivalent in in England, England, by by
Committee, Committee, one one being being the the narrowing narrowing of of the the scope scope of of 'reasonable 'reasonable force', force', put put forward forward by by
The The Law Law Commission Commission actually actually reviewed reviewed two two options options for for the the Justice Justice and and Electoral Electoral
304 304
Section Section 4 4 Crimes Crimes (Substituted (Substituted Section Section 59 59 Act) Act) Amendment Amendment Act Act 2007 2007
303 303
2007. 2007.
http://johnkey.co.nz/index.php?/archives/101-NEWSLETTER-KeyNotes-No-9.html, http://johnkey.co.nz/index.php?/archives/101-NEWSLETTER-KeyNotes-No-9.html, May May 2 2
Key, Key, John, John, Some Some sense sense on on smacking- at at last! last! Newsletter: Newsletter: Keynotes Keynotes No No 9, 9,
302 302
include include an an affirmation affirmation of of police police discretion, discretion, the the message message would would become become compromised. compromised. The The
is is wrong wrong to to steal. steal. this this section section were were the the If If only only section section in in the the whole whole of of the the Crimes Crimes Act Act to to
cases cases inconsequential within within the the words words of of the the section. section. The The message message about about theft theft is is clear, clear, that that it it
Crimes Crimes Act Act 1961, 1961, 'Theft 'Theft or or Stealing' Stealing' does does not not affirm affirm the the police police discretion discretion not not to to prosecute prosecute
weakens weakens the the strength strength of of the the purpose purpose of of that that section. section. To To make make a a comparison, comparison, s219 s219 of of the the
Even Even though though this this discretion discretion exists exists for for every every offence, offence, the the fact fact that that it it is is reiterated reiterated only only in in s59 s59
served served by by being being clear clear about about its its purpose. purpose.
304 304
was was the the actual actual intention intention of of the the Bill, Bill, then then the the integrity integrity of of the the Act Act would would have have been been better better
affirmed affirmed that that smacking smacking is is acceptable, acceptable, so so long long as as it it is is not not more more than than inconsequential. inconsequential. this this If If
the the Act, Act, which which is is to to abolish abolish the the use use of of parental parental force force for for the the purposes purposes of of correction? He He has has
03 03
Mr Mr Key Key succinctly succinctly implied implied that that the the intention intention of of s59(4) s59(4) is is to to undermine undermine the the whole whole purpose purpose of of
no no public public interest interest in in the the prosecution prosecution going going ahead."
302 302
against against parent parent a where where the the offence offence is is considered considered to to be be 'so 'so inconsequential' inconsequential' that that there there is is
children. children. It It makes makes it it clear clear that that police police have have the the discretion discretion not not to to prosecute prosecute complaints complaints
"give "give parents parents confidence confidence that that they they will will not not be be criminalised criminalised for for lightly lightly smacking smacking their their
of of the the affirmation affirmation was was to: to:
addition addition of of subsection subsection 4, 4, effectively effectively hit hit the the nail nail the the on head head when when he he stated stated that that the the purpose purpose
102 102
challenged. challenged. Traditionally, Traditionally, the the courts courts have have been been reluctant reluctant to to review review the the exercise exercise of of
This This could could potentially potentially cause cause problems problems if if police police a decision decision not not to to prosecute prosecute an an offence offence is is
probably probably not not the the intention intention of of the the legislature. legislature.
these these cases cases because because the the discretion discretion has has not not been been affirmed affirmed anywhere anywhere even even else though though this this was was
that that this this section section really really only only has has face face value, value, or or that that perhaps perhaps police police have have extra extra discretion discretion in in
Act Act as as a a whole whole by by implying implying that that it it is is somehow somehow different different from from the the other other sections. sections. suggests suggests It It
affirmed affirmed in in only only one one section section of of the the statute statute not not only only undermines undermines that that section, section, it it undermines undermines the the
sufficient sufficient evidence evidence or or if if it it would would not not be be in in the the public public interest. interest. The The fact fact that that this this discretion discretion is is
Act, Act, s59. s59. In In practice, practice, police police have have discretion discretion not not to to prosecute prosecute any any offences offences if if they they do do not not have have
The The police police discretion discretion not not to to prosecute prosecute is is affirmed affirmed in in only only one one section section of of the the entire entire Crimes Crimes
c) c) Integrity Integrity of of the the Crimes Crimes Act Act and and immunity immunity from from review review
inconsequential inconsequential so so as as to to avoid avoid prosecution'. prosecution'.
force force against against them them for for the the purposes purposes of of correction, correction, but but if if you you do, do, make make sure sure it it is is sufficiently sufficiently
the the ways ways children children are are not not equal equal to to others others and and their their bodily bodily integrity integrity can can be be invaded. invaded. Do Do not not use use
inclusion inclusion of of the the affirmation affirmation of of police police discretion discretion have have transformed transformed this this message message into, into, 'Here 'Here are are
adults adults with with respect respect to to bodily bodily integrity integrity and and assault'. assault'. The The amendments amendments and and the the unnecessary unnecessary
The The underlying underlying message message of of the the Bill Bill was was originally originally intended intended to to be, be, 'children 'children are are the the same same as as
they they that are are deserving deserving completely to to be be free free of of the the use use of of force force for for the the purposes purposes of of discipline. discipline.
rights, rights, s59 s59 does does not not properly properly convey convey that that children children have have the the right right to to bodily bodily integrity, integrity, or or even even
people people what what is is expected expected of of them, them, without without vague vague qualifications. qualifications. In In the the context context of of children's children's
This This is is not not ideal. ideal. The The Criminal Criminal code code of of a a country country should should be be to to able be be relied relied upon upon to to tell tell the the
message message might might instead instead be be that that it it is is wrong wrong to to steal steal in in general, general, but but minor minor thefts thefts are are not not so so bad. bad.
103 103
June June 20 20 2007 2007
the the Law, Law, http://www http://www .laws .laws 179 179 .co.nz/2007 .co.nz/2007 /06/crimes-substituted-section-59-amendment.html, /06/crimes-substituted-section-59-amendment.html,
Knight, Knight, Dean, Dean, Crimes Crimes (Substituted (Substituted Section Section 59) 59) Amendment Amendment Bill, Bill, Laws Laws 179 179 Elephants Elephants in in
311 311
Polynesian Polynesian Spa Spa v v Osborne Osborne at at 69 69
310 310
Hallett Hallett v v Attorney-General Attorney-General (No.2) (No.2) [1989] [1989] 2 2 NZLR NZLR 96, 96, 100. 100.
309 309
lbid lbid at at 64 64
308 308
lbid lbid at at 62 62
307 307
[2005] [2005] NZAR NZAR 408 408
306 306
Fox Fox v v Attorney Attorney General General [2002] [2002] 3 3 NZLR NZLR 62 62
305 305
the the discretion discretion to, to, or or not not to to prosecute, prosecute, because because the the statute statute itself itself does does not not confer confer the the discretion, discretion,
reviewing reviewing it it in in s59 s59 cases. cases. Some Some theorists theorists believe believe the the that affirmation affirmation will will not not further further fetter fetter
legislative legislative reference reference to to police police discretion discretion will will allow allow the the courts courts will will find find more more legitimacy legitimacy in in
open open to to more more direct direct review review in in a a criminal criminal prosecution. prosecution. is is difficult difficult It It to to predict predict whether whether the the
However However now now that that it it has has been been codified codified to to form form a a substantial substantial part part of of s59 s59 it it could could potentially potentially be be
included included in in statute, statute, it it was was difficult, difficult, yet yet possible, possible, to to it it challenge by by way way of of judicial judicial review, review,
cases cases of of bad bad faith, faith, despite despite it it now now being being affirmed affirmed within within the the Act. Act. Before Before the the discretion discretion was was
311 311
is is possible possible It It the the courts courts will will remain remain reluctant reluctant to to review review the the exercise exercise of of discretion, discretion, except except in in
case case not not affected affected by by factors factors such such as as the the adoption adoption of of a a general general policy."
310 310
a a court court would would intervene intervene where where a a decision decision has has been been taken taken not not to to prosecute prosecute in in a a specific specific
brought. brought. There There may may be be other other grounds grounds but but it it is is likely likely only only to to be be in in exceptional exceptional cases cases that that
the the adoption adoption of of a a general general policy policy that that in in classes classes certain of of cases, cases, prosecutions prosecutions will will not not be be
obtained obtained in in such such a a case case where where there there has has been been a a failure failure to to exercise exercise discretion, discretion, such such as as by by
"Halletl is is authority authority for for the the proposition proposition that that judicial judicial review review is is only only likely likely to to be be
09 09
prosecute prosecute is is also also amenable amenable to to review: review:
prosecution prosecution for for collateral collateral purposes." The The judge judge in in the the case case found found that that the the decision decision not not to to
308 308
that that is is "if "if it it were were established established that that the the prosecuting prosecuting authority authority acted acted in in bad bad faith faith or or brought brought the the
while while review review
of of discretion discretion cannot cannot be be completely completely ruled ruled out, out, "it "it will will only only be be in in rare rare cases",
307 307
its its application application within within the the judicial judicial realm. realm. In In Polynesian Polynesian Spa Spa Ltd Ltd v v Osborne it it was was held held that that
306 306
discretion, discretion, however however it it is is debateable debateable whether whether the the inclusion inclusion of of the the discretion discretion in in statute statute brings brings 305 305
104 104
Supra Supra No. No. 37, 37, 87. 87. page
314 314
smacking. smacking.
promise promise that that the the inclusion inclusion of of subsection subsection 4 4 protects protects parents parents from from criminalisation criminalisation for for light light
entitlement entitlement to to be be free free from from prosecution prosecution for for uses uses "benign" "benign" corrective corrective force force after after John John Key's Key's
expect expect application application the of of the the "inconsequential" "inconsequential" standard standard to to be be transparent. transparent. It It shows shows a a sense sense of of
http://www.scoop.co.nz/stories/P00705/S0012l.htm http://www.scoop.co.nz/stories/P00705/S0012l.htm for for an an example example of of how how people people will will
Society Society for for the the Promotion Promotion of of Community Community Standards, Standards, 7 7 May May 2007, 2007,
See See Smacking Smacking Crimes Crimes "Inconsequential"- Yet Yet Police Police Still Still Prosecuted, Prosecuted, Press Press Release: Release:
313 313
discretion discretion is is irrelevant irrelevant in in the the eyes eyes of of the the court. court.
prevent prevent abuse, abuse, and and to to discharge discharge without without conviction. conviction. He He concludes concludes that that prosecutorial prosecutorial
Ibid Ibid at at 5. 5. Knight Knight points points out out that that court court the has has existing existing power power to to control control prosecutions prosecutions to to
312 312
consistency consistency of of the the statute statute would would not not have have been been compromised. compromised.
the the affirmation affirmation a a general general provision provision of of Crimes Crimes the Act, Act, the the underlying underlying message message in in s59 s59 and and the the
affirming affirming general general a a police police discretion discretion not not to to prosecute, prosecute, without without setting setting s59 s59 apart. apart. By By making making
purpose purpose of of its its inclusion, inclusion, which which is is 'to 'to avoid avoid doubt'. doubt'. This This purpose purpose could could have have been been achieved achieved by by
general general provision, provision, applicable applicable to to the the whole whole Act. Act. The The words words of of s59(4) s59(4) are are clear clear about about the the
taken taken too too seriously, seriously, the the affirmation should should affirmation either either have have been been left left out out altogether, altogether, or or made made a a
To To avoid avoid the the implication implication that that police police have have extra extra discretion discretion in in s59 s59 cases, cases, or or that that s59 s59 is is not not to to be be
separate. separate.
behaviour, behaviour, without without qualification? The The practical practical application application of of the the code code should should be be kept kept quite quite
14 14
not not the the purpose purpose of of the the Bill. Bill. The The Criminal Criminal code code should should set set society's society's minimum minimum standard standard of of
permitted permitted people people to to feel feel entitled entitled to to a a fair fair and and transparent transparent exercise exercise of of discretion, discretion, which which was was
313 313
it it merely merely recognises recognises it. Regardless, Regardless, the the inclusion inclusion of of affirmation affirmation the in in the the section section has has 312 312
105 105
parents? parents? 46 46 Journal Journal of of Advanced Advanced Nursing Nursing 3, 3, 311-318. 311-318.
Taylor, Taylor, J., J., & & Redman, Redman, S. S. The The controversy: controversy: smacking what what advice advice should should we we be be giving giving
321 321
http://www.littlies.co.nz/page.asp?id=246&leve1=3 http://www.littlies.co.nz/page.asp?id=246&leve1=3
320 320
http://www http://www .nzfamilies.org.nz/parenting/positive-discipline. .nzfamilies.org.nz/parenting/positive-discipline. php php
319 319
Supra Supra No. No. 37, 37, page page 87. 87.
318 318
Hug, Hug, not not to to Smack, Smack, Office Office of of the the Commissioner Commissioner of of Children Children and and EPOCH, EPOCH, 2001. 2001.
Child Child discipline discipline and and the the law, law, Bardardos Bardardos Information Information Sheet Sheet No.61, No.61, July July 2007; 2007; Choose Choose to to
317 317
Section Section 4 4 Crimes Crimes (Substituted (Substituted Section Section 59) 59) Amendment Amendment Act Act 2007 2007
316 316
Naughty-Mat.aspx Naughty-Mat.aspx
http://www. http://www. supernanny supernanny .eo. .eo. uk/ uk/ Advice/ Advice/ -/Parenting -/Parenting -Skills/ -Skills/ -/Discipline-and- Reward/The
children children on on the the naughty naughty step step or or naughty naughty mat mat as as a a form form of of time-out. time-out.
popular popular parenting parenting show. show. Supernanny, Supernanny, Jo Jo Frost, Frost, recommended recommended physically physically putting putting misbehaving misbehaving
The The 'naughty 'naughty step' step' was was an an alternative alternative to to advocated advocated smacking by by Supernanny, Supernanny, TV2's TV2's
315 315
application application of of force force to to carry carry a a child child to to a a "naughty "naughty mat" mat" or or another another room room for for the the purposes purposes of of
In In a a legal legal opinion opinion for for Gordon Gordon Copeland Copeland MP, MP, Peter Peter McKenzie McKenzie QC QC concludes concludes that that the the
and and removing removing a a child child to to a a room, room, corner, corner, or or step step for for bad bad behaviour.
321 321
smacking. smacking. The The use use of of 'time-out" 'time-out" is is recommended recommended by by "Littlies", specifically, specifically, the the picking picking up up
320 320
reinforcement reinforcement techniques, techniques, and and provides provides links links to to other other NGO's NGO's with with advice advice on on alternatives alternatives to to
organizations organizations (NGO's). The The Families Families Commission Commission website recommends recommends several several positive positive
318 318 319 319
alternatives alternatives to to physical physical discipline discipline has, has, at at this this point, point, been been left left with with non-governmental non-governmental
with with problem problem behaviour. behaviour. The The task task of of explaining explaining the the new new law law and and assisting assisting parents parents to to find find
use use of of physical physical force force for for the the purposes purposes of of correction correction and and have have to to learn learn new new ways ways of of dealing dealing
Section Section 59) 59) Amendment Amendment Act Act meant meant that that parents parents in in New New Zealand Zealand can can no no longer longer resort resort to to the the
encouragement encouragement techniques techniques and and child child guidance. guidance. The The introduction introduction of of the the Crimes Crimes (Substituted (Substituted
317 317
a a context context of of discipline discipline and and punishment, punishment, and and instead instead are are being being persuaded persuaded to to use use positive positive
purposes purposes of of correction. Parents Parents today today are are being being discouraged discouraged from from raising raising their their children children in in
316 316
secure secure environment environment free free from from violence violence by by abolishing abolishing the the use use of of parental parental force force for for the the
The The purpose purpose of of amending amending s59 s59 was was to to make make better better provision provision for for children children to to live live in in a a safe safe and and
4. 4. Putting Putting a a child child on on the the 'naughty 'naughty step step ' 315 315
106 106
the the focus focus is is still still on on the the use use of of force force for for the the purposes purposes of of correction, correction, not not on on other other uses uses of of force. force.
smack smack as as part part of of good good parental parental correction correction be be a a criminal criminal offence offence in in New New Zealand?" Zealand?" Clearly, Clearly,
269,500 269,500 signatures. signatures. One One of of the the questions questions they they aim aim to to have have a a referendum referendum on on is, is, "Should "Should a a
The The First First Family petition petition for for a a referendum referendum had, had, at at 29 29 April April 2008, 2008, gathered gathered approximately approximately
324 324
University University of of Victoria. Victoria.
submissions submissions to to the the Justice Justice and and Electoral Electoral Committee Committee (2007) (2007) Health Health Services Services Research Research Centre, Centre,
Debski, Debski, S., S., Buckley, Buckley, S., S., Russell, Russell, M., M., Just Just who who do do we we think think children children are? are? An An analysis analysis of of
supported supported the the Bill Bill clearly clearly stated stated they they that also also supported supported physical physical punishment." punishment."
punishment. punishment. .. .. none none who who opposed opposed the the Bill Bill opposed opposed physical physical punishment punishment and and only only five five who who
oppose oppose the the Bill Bill and and those those who who supported supported the the Bill Bill would would oppose oppose the the use use of of physical physical
it it was was found found that that "in "in general general those those submitters submitters who who advocated advocated physical physical punishment punishment would would
In In an an analysis analysis of of the the submission submission made made to to the the Justice Justice and and Electoral Electoral Committee Committee the the on Bill, Bill,
323 323
Supra Supra No. No. 277 277 page page 9 9
322 322
physical physical punishment, punishment, not not on on non-disciplinary non-disciplinary uses uses of of force. force. When When the the amendments amendments were were
323 323 324 324
The The media media fuelled fuelled public public hysteria hysteria and and concern around around concern the the repeal repeal of of s59 s59 was was focused focused on on
a) a) Is Is this this another another "gap "gap in in the the law"? law"?
point point in in making making the the amendments? amendments?
prosecuted, prosecuted, however however it it raises raises the the question, question, if if a a gap gap in in the the law law still still exists, exists, what what then then was was the the
time time out out would would be be considered considered inconsequential, inconsequential, and and therefore therefore would would be be unlikely unlikely to to be be
force force used, used, or or the the motivation motivation behind behind the the application application of of force. force. The The force force used used to to put put a a child child in in
The The definition definition of of in in assault the the Crimes Crimes Act Act 1961 1961 does does not not provide provide for for varying varying degrees degrees of of
under under the the Crimes Crimes Act. Act.
322 322
under under the the proposed proposed Bill Bill and and would, would, therefore, therefore, come come the the within meaning meaning of of an an assault assault
another another room room in in order order to to provide provide correction correction or or discipline discipline to to the the child child cannot cannot be be justified justified
In In my my opinion, opinion, the the carrying carrying of of a a against against child the the child's child's will will to to a a "naughty "naughty mat" mat" or or
correction correction is is expressly expressly excluded excluded by by reason reason of of clause clause 3 3 and and the the proposed proposed s.59(2) s.59(2) and and (3). (3).
parental parental intervention intervention for for the the purpose purpose of of correction. correction. Any Any use use of of force force for for the the purpose purpose of of
Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bill, Bill, do do not not provide provide any any justification justification for for
inserted inserted into into the the Crimes Crimes Act Act by by clause clause 4 4 of of the the Crimes Crimes (Abolition (Abolition of of Force Force as as a a
The The 'justifications" 'justifications" for for parental parental intervention intervention set set out out in in s.59(1) s.59(1) which which is is proposed proposed to to be be
assault. assault.
"time-out" "time-out" amounts amounts to to use use of of force force for for the the purposes purposes of of correction, correction, and and therefore therefore constitutes constitutes . .
107 107
created created a a loophole loophole in in the the law law for for parents parents to to use use force force for for the the purposes purposes of of discipline. discipline.
The The Law Law Commission Commission suggests suggests to to that legislate legislate for for the the 'timeout' 'timeout' scenario scenario would would have have
328 328
See See above above No. No. 273. 273.
327 327
Police Police Practice Practice Guide Guide for for new new Section Section 59, 59, 19 19 June June 2007 2007 (Appendix (Appendix 3) 3)
326 326
in in s59. s59.
purposes purposes of of discipline discipline can can easily easily be be reinterpreted reinterpreted to to fit fit within within the the four four legitimate legitimate uses uses of of force force
either either s59(b)(c) s59(b)(c) and and (d). (d). This This lends lends further further support support for for the the notion notion that that the the use use of of force force for for the the
The The Police Police Guidelines Guidelines specifically specifically refer refer to to time time out out situations, situations, classifying classifying them them under under
326 326
misunderstand misunderstand the the Bill, Bill, by by legislating legislating further further protections protections for for them. them.
results results of of a a law law change. change. Implicit Implicit in in this, this, is is the the also also the the attempt attempt to to reassure reassure who who tho~e tho~e
amendments amendments to to achieve achieve clarity clarity amongst amongst widespread widespread confusion confusion about about the the purpose purpose and and possible possible
See See above above No. No. 273. 273. The The Justice Justice and and Electoral Electoral Committee Committee state state they they that have have drafted drafted the the
325 325
http:/ http:/ /stuff.co.nz/print/450 /stuff.co.nz/print/450 1944a19715 1944a19715 .html .html
Smacking Smacking petition petition falls falls short, short, retrieved retrieved 29 29 April April 2008 2008 from from
p p ys1ca ys1ca pums pums h h ment. ment.
. 1 . h h . 1 . 328 328
still still a a gap, gap, and and it it is is the the one one that that people people were were concerned concerned about. about. It It is is the the gap gap concerning concerning
up up
by by spelling spelling out out the the law law regarding regarding the the use use of of force force against against children. However, However, there there is is
327 327
, , addressed, addressed, and and widespread widespread that misunderstanding misunderstanding about about the the effect effect of of the the bill bill would would be be cleared cleared
The The Justice Justice and and Electoral Electoral Committee Committee felt felt there there was was a a gap gap in in the the law law that that needed needed to to be be
b) b) What What was was the the point point in in the the amendments? amendments? Why Why not not just just repeal repeal s59? s59?
of of correction correction amounts amounts to to assault, assault, not not just just hitting hitting or or smacking. smacking.
'smacking' 'smacking' meant meant that that less less attention attention was was paid paid to to the the fact fact that that any any use use of of force force for for the the purposes purposes
were were not not going going to to be be made made criminals criminals for for disciplining disciplining their their children, children, but but the the focus focus on on
affirmed, but but again, again, in in reality, reality, it it changed changed nothing. nothing. People People wanted wanted to to be be reassured reassured that that they they
326 326
changed changed nothing. nothing. People People felt felt further further relieved relieved when when the the police police discretion discretion not not to to prosecute prosecute was was
politicians seemed seemed to to be be reassured reassured that that this this gave gave them them further further protection, protection, but but in in reality reality it it
325 325
for for the the purposes purposes of of correction, correction, such such as as picking picking a a child child up up for for time time out out were were not. not. People People and and
uses uses of of force force for for non-disciplinary non-disciplinary reasons reasons were were legitimised, legitimised, but but the the non-violent non-violent uses uses of of force force
made made by by the the Justice Justice and and Electoral Electoral Committee Committee after after considering considering over over 1700 1700 submissions, submissions, the the
108 108
than than smacking. smacking.
successful successful application application of of the the s59 s59 defence defence in in cases cases where where the the force force used used was was far far more more severe severe
turned turned toward toward smacking, smacking, despite despite the the fact fact that that the the concern concern for for this this issue issue stemmed stemmed from from the the
children, children, Save Save Children Children the New New Zealand, Zealand, 2008, 2008, page page 140. 140. As As result, result, the the public's public's attention attention
Unreasonable Unreasonable Force. Force. New New Zealand's Zealand's journey journey towards towards banning banning the the physical physical punishment punishment of of
329 329
Palmer., Palmer., G., G., Law Law Commission, Commission, Supra Supra No. No. 295. 295.
did did nothing nothing to to change change the the current current reality, reality, because because police police discretion discretion has has always always existed. existed.
of of the the affirmation affirmation of of the the police police discretion discretion was was meant meant to to reassure reassure further people, people, but but again, again, it it
there there therefore was was no no reason reason for for people people to to feel feel reassured reassured by by the the amendments. amendments. The The addition addition
Bradford's Bradford's original original bill bill in in the the context context of of physical physical force force for for the the purposes purposes of of correction, correction,
concerning concerning the the New New Zealand Zealand public. public. The The proposed proposed law law change change was was still still as as severe severe as as Sue Sue
amendments amendments The made made to to the the answered answered bill the the second second issue, issue, but but this this was was not not what what was was
Issue Issue 2. 2. Physical Physical force force for for purposes purposes other other than than correction. correction.
Issue Issue 1. 1. Physical Physical force force for for the the purposes purposes of of correction. correction.
The The issue issue of of the the use use of of force force was was split split in in two two by by the the time time the the Bill Bill reached reached its its third third reading: reading:
completely completely different different issue. issue.
severe severe form form of of Sue Sue Bradford's Bradford's original original bid, bid, but but all all the the amendment amendment did did was was answer answer a a
criminalisation criminalisation in in an an effort effort to to get get the the law law passed. passed. It It was was meant meant to to be be a a compromise, compromise, a a less less
in in the the final final stages, stages, to to create create enough enough reassurance reassurance that that there there would would not not be be widespread widespread
would would be be made made criminals criminals for for smacking. light The The amendments amendments were were introduced, introduced, especially especially
329 329
from from opponents opponents of of the the bill, bill, who who wanted wanted to to alarm alarm the the with with public the the notion notion that that good good parents parents
of of correction, correction, not not just just smacking. smacking. Wood, Wood, Hassall Hassall and and Hook Hook suggest suggest that that this this label label originated originated
despite despite the the fact fact that that Bill Bill sought sought to to abolish abolish all all uses uses of of force force against against children children for for the the purposes purposes
When When Sue Sue Bradford Bradford introduced introduced her her Bill, Bill, it it quickly quickly became became known known as as the the "anti-smacking "anti-smacking bill" bill"
109 109
Surpa Surpa No. No. 33 33
330 330
physical physical integrity integrity instead. instead. Although Although they they are are designed designed to to achieve achieve the the same same purpose, purpose,
children children are are entitled entitled to, to, but but New New Zealand Zealand lists lists all all of of the the ways ways children children are are not not entitled entitled to to
deserving deserving of of the the right right not not to to be be hit, hit, just just like like everyone everyone else. else. Sweden Sweden lists lists all all of of the the things things that that
establishing establishing children's children's rights. rights. This conveys conveys This to to the the people people that that children children are are valued valued citizens, citizens,
virtue virtue of of the the way way the the abolishment abolishment was was phrased. phrased. The The Swedish Swedish code code makes makes a a point point of of
New New Zealand Zealand was was not not trying trying to to achieve achieve different different something from from Sweden, Sweden, but but did did so, so, by by
Parents Parents Code, Code, eh. eh. 6, 6, § § 1. 1. )"
330 330
corporal corporal punishment punishment or or any any other other injurious injurious or or humiliating humiliating treatment) treatment) (Children (Children and and
with with respect respect for for their their person person and and their their distinctive distinctive character character and and may may not not be be subject subject to to
"Children "Children are are entitled entitled to to care, care, security security and and a a good good upbringing. upbringing. They They shall shall be be treated treated
amended amended in in 1983 1983 states: states:
New New Zealand Zealand has has created created with with the the Parental Parental Control Control provision. provision. The The Swedish Swedish Parents Parents Code, Code, as as
terms terms of of children's children's rights rights and and respect respect for for children children they they managed managed to to avoid avoid the the problems problems that that
Sweden Sweden successfully successfully banned banned corporal corporal punishment punishment almost almost 30 30 years years ago. ago. By By framing framing the the ban ban in in
to to change change the the current current reality. reality.
concerns concerns for for something something completely completely different different is is illogical, illogical, especially especially since since it it has has done done nothing nothing
s59 s59 and and simply simply left left it it at at that. that. The The fact fact that that a a defence defence has has been been legislated legislated to to appease appease the the
legitimate legitimate uses uses in in s59(1). s59(1). We We would would be be in in better, better, a clearer clearer position position if if we we had had simply simply repealed repealed
the the section section means means there there is is potential potential for for corrective corrective uses uses of of force force to to be be disguised disguised as as one one of of the the
corporal corporal punishment, punishment, because because there there are are still still gaps gaps in in the the law. law. However, However, the the vague vague drafting drafting of of
disciplinary disciplinary force force against against children, children, nor nor have have they they softened softened the the blow blow with with respect respect to to abolishing abolishing
The The amendments amendments have have done done nothing nothing to to change change the the current current reality reality concerning concerning the the use use of of non-
110 110
force force can can be be used. used. be be used. used.
It It does does not not go go into into other other situations situations where where It It does does go go into into situations situations where where force force can can
YandZ. YandZ.
hit. hit. can can hit hit or or use use other other force force for for situations situations X, X,
humans humans and and humans humans do do not not deserve deserve to to be be cannot cannot hit hit for for correctional correctional purposes, purposes, but but
The The overall overall message message is is that that children children are are The The overall message message overall is is that that parents parents
corporal corporal punishment punishment corporal corporal punishment punishment
The The aim aim and and purpose purpose is is to to remove remove The The aim aim and and purpose purpose is is to to remove remove
respect. respect.
to to respect. respect. rights, rights, the the treatment treatment of of children children or or
Positive Positive wording. wording. Children Children are are entitled entitled Nothing Nothing mentioned mentioned about about children's children's
Sweden's Sweden's Parental Parental Code Code New New Zealand's Zealand's section section 59 59
Table Table One: One: Comparison Comparison between between Sweden's Sweden's and and New New Zealand's Zealand's legislation. legislation.
are are completely completely different, different, and and Table Table One One shows. shows.
(abolishing (abolishing the the use use of of force force for for the the purposes purposes of of correction) correction) the the messages messages the the two two laws laws send send
111 111
Section Section 59 59 'Domestic 'Domestic Discipline', Discipline', Crimes Crimes Act Act 1961, 1961, prior prior to to the the 2007 2007 amendment. amendment.
333 333
Amendment Amendment Act. Act.
Section Section 59(2) 59(2) Crimes Crimes Act Act 1961 1961 as as substituted substituted by by section section 5 5 Crimes Crimes (Substituted (Substituted Section Section 59) 59)
332 332
Crimes Crimes (Substituted (Substituted Section Section 59) 59) Act Act 2007 2007
331 331
139A 139A of of the the Education Education Act Act 1989.] 1989.]
[(3) [(3) Nothing Nothing in in subsection subsection of of this this section section (1) (1) justifies justifies the the use use of of force force towards towards a a child child in in contravention contravention of of section section
(2) (2) The The reasonableness reasonableness of of the the force force used used is is a a question question of of fact. fact.
circumstances. circumstances.
of of a a child child is is justified justified in in using using force force by by way way of of correction correction towards towards the the child, child, if if the the force force used used is is reasonable reasonable in in the the
Every Every parent parent (1) (1) of of a a child child and, and, subject subject to to subsection subsection (3) (3) of of this this section, section, every every person person in in the the place place of of the the parent parent
59 59 Domestic Domestic discipline discipline
2007 2007 amendment. amendment.
1. 1. The The old old law: law: Domestic Domestic Discipline, Discipline, Section Section 59 59 of of the the Crimes Crimes Act Act 1961, 1961, prior prior to to the the
repealed. repealed. To To do do this, this, I I will will run run various various scenarios scenarios through through three three tests: tests:
children's children's rights rights and and protection protection would would have have been been better better advanced advanced if if s59 s59 had had simply simply been been
improved improved the the Domestic Domestic Discipline provision provision sufficiently sufficiently to to warrant warrant its its existence, existence, and and that that
333 333
clarifies clarifies it. it. In In this this chapter, chapter, I I will will demonstrate demonstrate that that the the Parental Parental Control Control provision provision has has not not
than than good good because because having having a a statutory statutory direction direction actually actually confuses confuses the the situation situation more more than than it it
clearer clearer on on this this issue issue if if it it silent. silent. were In In other other words, words, the the amendment amendment has has done done more more damage damage
new new Parental Parental Control provision provision presents, presents, and and suggested suggested that that the the law law would would have have been been
332 332
that that every every other other member member of of society society enjoys. enjoys. In In chapter chapter 3 I I 3 examined examined the the problems problems that that the the
right right to to bodily bodily integrity, integrity, and and does does not not provide provide children children with with the the same same protections protections from from assault assault
The The 2007 2007 amendment to to s59 s59 of of the the Crimes Crimes Act Act 1961 1961 fails fails to to children's children's recognise human human 331 331
tests. tests.
Chapter Chapter 4: 4: Putting Putting Parental Parental through through Control the the 2. The new law: Parental Control, Section 59 of the Crimes Act 1961, after the 2007 amendment. s59 Parental Control.
(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of-
(a) preventing or minimising harm to the child or another person; or
(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
(d) performing the normal daily tasks that are incidental to good care and parenting.
(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
(3) Subsection (2) prevails over subsection (1).
(4) To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.]
3. The position if Section 59 had simply been repealed.
In its original form, the Crimes (Abolition of Force as a Justification for Child Discipline)
Amendment Bi11334 (the Bill), proposed to simply remove the s59 defence to assault from the
Crimes Act 1961. If this had occurred, there would be no specific statutory justification for the use of force for parents or persons in the place of parents. In essence, children would have, in the eyes of the law, the same protection from assault335 as everyone else. Existing common law defences and police prosecutorial discretion would act as the safeguards to
334 2005 no 271-1 335 Secti~n 2 of the Crimes Act 1961 defines assault as: "the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose; and to assault has a corresponding meaning."
112
113 113
was was acceptable acceptable to to most most people." people."
overwhelmingly overwhelmingly negative negative response response from from the the public, public, indicating indicating that that only only using using an an open open hand hand
of of objects objects to to smack smack a a and and child smacking smacking them them in in the the head head and and neck neck area area drew drew an an
child child should should be be allowed allowed by by law law to to smack smack them them with with an an open open hand hand if if they they are are naughty. naughty. The The use use
In In a a 2001 2001 survey survey it it was was found found that that "80% "80% of of the the public public agreed agreed that that a a person person parenting parenting a a
337 337
corporal corporal punishment. punishment. · ·
force force technically technically can can amount amount to to assault, assault, including including those those that that are are not not generally generally associated associated with with
Crimes Crimes Act Act does does not not restrict restrict assault assault to to blows blows or or similar similar actions, actions, therefore therefore applications applications all all of of
'smacking', 'smacking', which which is is only only one one form form of of invasion invasion into into physical physical integrity. integrity. Section Section 2 2 of of the the
public public debate debate that that surrounded surrounded the the amendment amendment of of section section 59 59 of of the the Crimes Crimes Act Act focused focused on on
to to be be forms forms of of corporal corporal punishment: punishment: smacking, smacking, slapping, slapping, whacking, whacking, or or any any form form of of blow. blow. The The
See See introduction. introduction. 'Hitting' 'Hitting' encompasses encompasses all all striking striking actions actions that that are are commonly commonly understood understood
336 336
punishment that that passed passed the the s59 s59 test, test, and and were were used used as as evidence evidence in in support support of of repeal.
337 337 338 338
between between light light smacking smacking for for the the purposes purposes of of discipline discipline and and more more extreme extreme forms forms of of corporal corporal
surrounding surrounding the the legislation. legislation. In In the the lead lead up up to to the the Bill, Bill, smacking smacking supporters supporters made made a a distinction distinction
debate debate than than the the more more the the extreme extreme forms forms of of physical physical punishment punishment that that dominated dominated the the debate debate
The The factual factual scenarios scenarios for for the the following following analysis analysis are are simple, simple, yet yet more more relevant relevant to to the the smacking smacking
b) b) When When the the force force used used does does not not involve involve hitting, hitting, for for example, example, restraint. restraint.
a) a) When When the the force force used used is is 'hitting' 'hitting' or or similar similar striking striking actions.
336 336
Within Within these these groups groups I I will will also also examine examine the the outcomes outcomes for for different different forms forms of of force force used: used:
b) b) The The use use of of force force for for purposes purposes other other than than correction. correction.
a) a) The The use use of of force force for for the the purposes purposes of of correction correction
children. children. The The use use of of force force can can be be divided divided into into two two main main areas: areas:
The The scenarios scenarios that that I I will will run run through through these these tests tests all all involve involve the the parental parental use use of of force force against against
in in widespread widespread prosecution. prosecution.
ensure ensure that that a a lack lack of of statutory statutory direction direction for for the the trivial trivial uses uses of of parental parental force force would would not not result result Therefore, this analysis will focus on the type of physical force that caused so much debate:
smacking. 339
1. The use of force for the purposes of correction.
The parental use of force against a child for the purposes of correction was justified prior to
the 2007 amendment to s59, so long as the force used was reasonable in the circumstances.
The Parental Control provision now prohibits any use of force for the purposes of correction.
The scenario I will use for this analysis is the situation in which a parent punishes a child for
swearing by either smacking him across the bottom with an open hand or putting him in time
out.
Carswell, S. Survey on public attitudes towards the physical punishment of children, Ministry of Justice, 2001. 338 Sue Bradford, in support of her Bill, referred to some extreme cases that had successfully raised the s59 defence, despite causing injury or using implements: "At the moment, judges and juries have it within their power to find parents not guilty of assault when, for example, they beat their children with things like belts, canes, hosepipes, jug cords, pieces of wood, and horse crops." (2005) 627 NZPD 22086 See: R v Wilson Unreported, CA 216/01, 24 October 2001; R v Newell Unreported, High Court Palmerston North, 12 September 2002, France J. 339 Wood, Hassall and Hook suggest that the focus on smacking came from the Bill's nickname, and clouded the real issue: "The popular label became 'the anti-smacking bill'. The use of this term continued in spite of the fact that the cases which had aroused public concern were ones in which parents had successfully used section 59 as a defence for prosecutions for assaults that involved much more than what is usually meant by the term 'smacking'. A more fitting title might have been 'the anti-child assault bill', although this does not have quite the same populist ring." Supra No. 37, page 140.
114
115 115
Prosecution Prosecution Guidelines, Guidelines, Crown Crown Law Law Office, Office, March March 1992. 1992. See See 3 3 Appendix
345 345
exercise exercise prosecutorial prosecutorial discretion. discretion. See See chapter chapter 3. 3.
This This is is affirmed affirmed in in s59( s59( 4 4 ), ), however however adds adds nothing nothing to to the the existing existing powers powers of of police police to to
344 344
s59(2) s59(2) specifically specifically prohibits prohibits the the use use of of force force for for the the purposes purposes of of correction. correction.
343 343
at at [3] [3] 342 342
[2000] [2000] NZFLR NZFLR 1089 1089
341 341
Re Re the the Five Five M M Children Children [2004] [2004] NZFLR NZFLR 337 337 at at [43] [43]
340 340
circumstances, circumstances, be be considered considered inconsequential, inconsequential, a a prosecution prosecution may may be be warranted warranted if if such such
would would not not be be inconsequential inconsequential assaults assaults ...... In In addition, addition, smacking smacking while may, may, in in some some
"The "The use use of of objects/weapons objects/weapons to to smack smack a a child, child, strikes strikes around around the the head head area area or or kicking kicking
probably probably not not be be enough enough to to trigger trigger a a prosecution: prosecution:
interest interest to to proceed proceed with with prosecution. prosecution. In In this this instance, instance, a a smack smack across across the the buttocks buttocks would would
345 345
prosecute prosecute minor minor inconsequential inconsequential instances instances of of assault, if if it it is is deemed deemed not not in in the the public public
344 344
s59, and and the the action action would would amount amount to to assault. assault. However, However, police police have have the the discretion discretion not not to to
343 343
Smacking Smacking a a child child as as punishment punishment for for swearing swearing would would not not be be defensible defensible under under the the current current
Under Under the the new new any any law, law, use use of of force force is is prohibited prohibited if if its its purpose purpose is is to to correct correct the the child. child.
amendment. amendment.
ii) ii) The The new new law: law: Parental Parental Control, Control, Section Section 59 59 of of the the Crimes Crimes Act Act 1961, 1961, after after the the 2007 2007
physical physical discipline." ' '
342 342
punishment punishment leading leading to to bruising bruising or or injury injury will will usually usually be be physical physical abuse abuse rather rather than than
"The "The use use of of a a weapon weapon will will render render generally the the punishment punishment unreasonable. unreasonable. Similarly, Similarly,
realm realm of of s59: s59:
i I, I, Re Re M M In In T, T, and and Moss Moss J J suggested suggested that that anything anything beyond beyond this this would would not not fall fall within within the the
41 41
justified justified under under the the old old s59, s59, so so long long as as the the force force used used was was reasonable reasonable in in the the circumstances.
340 340
for for swearing. swearing. Hitting Hitting a a child, child, by by way way of of a a smack smack or or slap, slap, for for disciplinary disciplinary purposes, purposes, was was
The The parent parent in in this this scenario scenario would would be be warranted warranted in in using using force force against against the the child child to to punish punish him him
amendment. amendment.
i) i) The The old old law: law: Domestic Domestic Discipline, Discipline, Section Section 59 59 of of the the Crimes Crimes Act Act 1961, 1961, prior prior to to the the 2007 2007
striking striking actions- smacking smacking the the child child as as punishment punishment for for swearing. swearing.
a) a) Force Force used used for for the the purposes purposes of of correction, correction, when when the the force force used used is is 'hitting' 'hitting' or or
116 116
Police Police Practice Practice Guide. Guide. See See Appendix Appendix 3 3
349 349
S59(1)(c) S59(1)(c)
348 348
http://www http://www .police. .police. govt.nz/resources/2007 govt.nz/resources/2007 /section- 59-activity- review/, review/, 20 20 December December 2007. 2007.
(Substitued (Substitued section section 59) 59) Amendment Amendment Act Act 2007, 2007,
Pope, Pope, R. R. Three Three month month review review of of Police Police activity activity following following the the enactment enactment of of the the Crimes Crimes
attending attending and/or and/or investigating investigating Police Police Officer." Officer."
or or "minor "minor acts acts of of physical physical discipline" discipline" were were determined determined to to be be "inconsequential" "inconsequential" by by either either the the
attended attended 111 111 child child assault assault events events and and "all "all of of the the 15 15 child child assault assault events events involving involving "smacking" "smacking"
In In the the three three months months following following the the amendment, amendment, there there had had been been no no prosecutions. prosecutions. Police Police had had
"Dad "Dad charged charged with with assault assault for for flicking flicking son's son's ear" ear" The The Press, Press, 29 29 January January 2008 2008
This This man man was was later later charged charged after after police police had had reviewed reviewed the the evidence. evidence.
Hamilton, Hamilton, P. P. "Father "Father warned warned for for disciplining disciplining boy, boy, 3" 3" The The Press, Press, 14 14 January January 2008. 2008.
example, example, a a Christchurch Christchurch man man who who flicked flicked his his child child on on the the ear. ear.
guidelines guidelines might might not not make make it it to to prosecution, prosecution, and and will will instead instead be be met met with with a a warning. warning. For For
Even Even cases cases that that do do not not fall fall the the within inconsequential inconsequential criteria criteria set set out out the the by police police
347 347
Police Police Practice Practice Guide. Guide. See See Appendix Appendix 3. 3.
346 346
people. people. This This means means that that the the action action of of a a smacking child child for for the the purposes purposes of of correction correction for for
Arguably, Arguably, using using swear swear words words is is offensive, offensive, displeasing, displeasing, annoying annoying and and insulting insulting to to some some
3. 3. Giving, Giving, or or of of a a nature nature to to give, give, offence; offence; displeasing; displeasing; annoying; annoying; insulting insulting ...... "
349 349
2. 2. Hurtful, Hurtful, injurious injurious ......
Pertaining Pertaining "1. "1. or or tending tending to to attack; attack; aggressive; aggressive; ......
The The Shorter Shorter Oxford Oxford English English Dictionary Dictionary defines defines "offensive" "offensive" as: as:
anger anger or or resentment resentment or or disgust disgust or or outrage outrage in in the the mind mind of of a a reasonable reasonable person." person."
"[The "[The behaviour] behaviour] must must be be such such as as is is calculated calculated to to wound wound the the feelings, feelings, arouse arouse
helpful helpful description description of of "offensive "offensive behaviour": behaviour":
In In Ceramalus Ceramalus v v Police Police (1991) (1991) 7 7 CRNZ CRNZ 678 678 Tomkins Tomkins J J adopted adopted the the following following as as a a
"offensive" "offensive" is is not not defined defined in in the the Act, Act, and and therefore therefore it it is is open open to to interpretation: interpretation:
continuing continuing to to engage engage in in offensive offensive behaviour. behaviour. As As the the Police Police Guidelines Guidelines point point out, out,
348 348
the the smack smack was was correction, correction, and and not not for for example, example, preventing preventing the the child child from from engaging engaging or or
This This means means that that prosecution prosecution is is precluded precluded if if it it can can not not be be established established the the that motive motive behind behind
behind behind the the smack smack was was correction, correction, and and not not one one of of the the legitimate legitimate purposes purposes set set out out in in s59(1). s59(1).
If If prosecution prosecution were were to to proceed proceed however, it it would would have have to to be be proved proved that that the the purpose purpose
347 347
have have not not stopped stopped such such actions."
346 346
actions actions are are repetitive repetitive or or frequent, frequent, and and other other interventions interventions or or warnings warnings to to the the offender offender
117 117
See See Appendix Appendix 4 4
351 351
See See Appendix Appendix 3 3
350 350
factors factors to to be be taken taken into into account account when when deciding deciding whether whether to to proceed proceed with with a a prosecution. prosecution.
be be largely largely superfluous. superfluous. The The existing existing prosecution prosecution guidelines provide provide ample ample guidance guidance on on the the
351 351
ambiguous ambiguous statutory statutory language language (as (as is is the the case case with with the the new new s59), s59), this this sort sort of of guidance guidance would would
force force should should be be considered considered inconsequential. inconsequential. However, However, in in the the absence absence of of confusing confusing and and
against against children children would would be be considered considered sufficiently sufficiently serious serious to to prosecute, prosecute, and and which which uses uses of of
released released for for the the Parental Parental Control Control provision provision in in 2007, to to detail detail what what sorts sorts of of uses uses of of force force
350 350
of of s59, s59, the the Police Police Commissioner Commissioner could could have have released released a a practice practice guide guide similar similar to to the the one one
purposes purposes of of discipline. discipline. A A smack smack would would be be a a smack, smack, regardless regardless of of the the motive. motive. After After the the repeal repeal
police, police, as as they they would would not not have have to to first first establish establish whether whether the the smack smack was was intended intended for for the the
prosecution. prosecution. s59 s59 had had If If simply simply been been repealed, repealed, this this task task would would be be more more straight straight forward forward for for
inconsequential inconsequential instances instances of of assault, assault, if if it it is is deemed deemed not not in in the the public public interest interest to to proceed proceed with with
However, However, as as mentioned mentioned earlier, earlier, police police have have the the discretion discretion not not to to prosecute prosecute minor minor
control control capacity, capacity, and and therefore therefore no no loopholes loopholes for for acts acts of of smacking smacking to to slip slip through. through.
would would amount amount to to assault. assault. There There would would be be no no special special defence defence for for persons persons acting acting in in a a parental parental
If If s59 s59 was was repealed, repealed, a a smack smack to to a a child child would would be be the the same same as as a a smack smack to to any any other other person: person: it it
if if iii) iii) The The position position Section Section 59 59 had had simply simply been been repealed. repealed.
the the use use of of force. force.
loophole, loophole, because because s59(2) s59(2) rests rests on on the the ability ability of of the the prosecutor prosecutor to to prove prove the the intention intention behind behind
continuing continuing to to engage engage in in offensive offensive behaviour, behaviour, i.e. i.e. swearing. swearing. Section Section 59(1) 59(1) provided provided has a a
swearing swearing could could potentially potentially be be reinterpreted reinterpreted as as a a justified justified act act of of preventing preventing the the child child from from
118 118
Prosecution Prosecution Guidelines, Guidelines, Crown Crown Law Law Office, Office, March March 1992, 1992, para para 3. 3. (Appendix (Appendix 4) 4)
352 352
other other purpose. purpose.
without without having having to to worry worry about about whether whether a a smack smack is is administered administered for for correction correction or or for for some some
position position as as adults, adults, and and police police would would be be able able to to assess assess the the force force used used on on a a case case by by case case basis, basis,
specifically specifically prohibited. prohibited. s59 s59 If If had had simply simply been been repealed, repealed, children children would would be be in in the the same same
purposes purposes of of discipline discipline would would higher higher be be under under the the amended amended s59, s59, because because this this action action is is
Ironically, Ironically, it it seems seems like like the the likelihood likelihood of of being being prosecuted prosecuted for for the the use use of of force force for for the the
sentencing options options sentencing available available to to the the Court. Court.
352 352
p) p) the the likely likely sentence sentence imposed imposed in in the the event event of of conviction conviction having having regard regard to to the the
oppressive; oppressive;
k) k) whether whether the the consequences consequences of of any any resulting resulting conviction conviction would would be be unduly unduly harsh harsh and and
j) j) the the prevalence prevalence of of the the alleged alleged offence offence aJ;J.d aJ;J.d the the need need for for deterrence; deterrence;
i) i) the the availability availability of of proper proper alternatives alternatives to to prosecution; prosecution;
b) b) all all mitigating mitigating and and aggravating aggravating circumstances; circumstances;
conduct conduct really really warrants warrants the the intervention intervention of of the the law; law;
a) a) the the seriousness seriousness or, or, conversely, conversely, the the triviality triviality of of the the alleged alleged offence; offence; i.e. i.e. whether whether the the
inconsequential, inconsequential, taking taking into into account, account, among among other other things: things:
For For example, example, in in the the current current scenario, scenario, the the prosecutor prosecutor might might choose choose to to classify classify the the smack smack as as
119 119
See See chapter chapter 3: 3: Putting Putting a a child child the the on naughty naughty step. step.
354 354
Unreported, Unreported, Court Court High Palmerston Palmerston North, North, T42/99, T42/99, 16 16 November November 1999, 1999, Wild Wild J. J.
353 353
discipline discipline him, him, then then the the action action is is prohibited prohibited by by s59(2). Technically, Technically, this this is is an an application application of of
354 354
means means that that if if the the intention intention behind behind picking picking the the child child up up and and putting putting him him in in time time out out is is to to
Under Under the the new new law, law, any any use use of of force force is is prohibited prohibited if if its its purpose purpose is is to to correct correct the the child. child. This This
amendment. amendment.
ii) ii) The The new new law: law: Parental Parental Control, Control, Section Section 59 59 of of the the Crimes Crimes Act Act 1961, 1961, after after the the 2007 2007
raising raising the the domestic domestic discipline discipline defence. defence.
had had run run away, away, and and was was found found not not guilty guilty of of cruelty, cruelty, kidnapping kidnapping and and unlawful unlawful detention detention after after
similar similar actions. actions. v v In In Giles R R a a father father chained chained his his 14 14 year year old old daughter daughter to to himself himself after after she she
353 353
all all Not of of the the cases cases that that were were successful successful in in raising raising the the old old s59 s59 defence defence involved involved hitting hitting or or
action. action.
application application of of force, force, and and so so long long as as the the intention intention was was correction, correction, the the defence defence would would cover cover this this
force force used used was was reasonable reasonable in in the the circumstances. circumstances. Picking Picking a a child child up up and and moving moving him him is is an an
Under Under the the old old law, law, the the use use of of force force for for the the purposes purposes of of correction correction was was justified, justified, so so long long as as the the
amendment. amendment.
i) i) The The old old law: law: Domestic Domestic Discipline, Discipline, Section Section 59 59 of of the the Crimes Crimes Act Act 1961, 1961, prior prior to to the the 2007 2007
point point is is the the that parent parent forcibly forcibly removes removes the the child child to to that that place. place.
up up and and puts puts him him in in time time out, out, which which could could be be either either a a room room or or a a corner corner or or a a step. step. The The main main
In In this this scenario, scenario, instead instead of of hitting hitting the the child child to to punish punish him him for for swearing, swearing, the the parent parent picks picks him him
or or striking striking actions- putting putting the the child child in in time time out out as as punishment punishment for for swearing. swearing.
b) b) Force Force used used for for the the purposes purposes of of correction, correction, when when the the force force used used is is not not 'hitting' 'hitting'
120 120
See See chapter chapter 3: 3: the the availability availability of of alternative alternative defences. defences.
357 357
See See Appendix Appendix 3. 3.
356 356
force force for for the the purpose purpose of of correction." correction."
to to live live in in a a safe safe and and secure secure environment environment free free from from violence violence by by abolishing abolishing the the use use of of parental parental
"The "The purpose purpose of of this this Act Act is is to to amend amend the the principle principle Act Act to to make make better better provision provision for for children children
Section Section 4 4 of of the the Crimes Crimes (Substituted (Substituted Section Section 59) 59) Amendment Amendment Act Act 2007 2007 states states its its
purpose: purpose: 355 355
violent violent applications applications of of force force for for the the purposes purposes of of correction. correction.
be, be, the the intention intention to to cause cause pain pain is is what what separates separates hitting hitting as as a a form form of of discipline discipline from from other, other, less less
degree degree of of pain. pain. It It is is not not really really relevant relevant how how transient transient or or trifling trifling the the pain pain from from a a smack smack might might
is is still still to to discipline, discipline, it it lacks lacks the the necessary necessary element element that that hitting hitting has- the the intention intention to to cause cause a a
succeed succeed
when when the the force force used used does does not not involve involve hitting. While While the the intention intention behind behind the the force force
357 357
cases. cases. Additionally, Additionally, alternative alternative defences defences for for the the application application of of disciplinary disciplinary force force might might better better
However, However, again, again, the the police police have have always always had had a a discretion discretion not not to to prosecute prosecute inconsequential inconsequential
If If s59 s59 had had been been repealed, repealed, any any application application of of force force would would technically technically amount amount to to assault. assault.
if if The The position position iii) iii) Section Section 59 59 had had simply simply been been repealed. repealed.
provide provide a a defence defence to to such such action."
356 356
period period or or in in a a manner manner that that is is unreasonable unreasonable in in the the circumstances, circumstances, this this subsection subsection will will not not
behaviour behaviour (s (s 59(1)(b) 59(1)(b) or or (c)) (c)) or or to to restore restore calm. calm. However, However, if if the the child child is is detained detained for for a a
under under this this subsection subsection i.e. i.e. to to prevent prevent the the child child from from continuing continuing to to engage engage in in the the
such such a a task task and and the the use use of of reasonable reasonable force force in in such such circumstances circumstances may may be be justified justified
child's child's will will at at the the time time the the intervention intervention is is required. required. Force Force may may be be required required to to perform perform
" " ...... parent parent a may may send send or or take take their their child child to, to, by by way way of of example, example, their their room room against against the the
practice practice guide guide actually actually reclassifies reclassifies this this action action for for us: us:
to to reclassify reclassify this this action action under under one one of of the the legitimate legitimate uses uses of of force force in in s59(1). s59(1). The The police police
Again, Again, police police have have the the discretion discretion not not to to prosecute prosecute inconsequential inconsequential cases, cases, and and again again it it is is easy easy
statutory statutory
ban ban on on every every other other disciplinary disciplinary use use of of force force as as we11?
55 55
to to ban ban and and smacking violent violent forms forms of of corporal corporal punishment, punishment, the the new new law law created created a a specific specific
force, force, and and if if there there is is no no justification justification it it amounts amounts to to assault assault under under s2. s2. Therefore, Therefore, in in an an attempt attempt
121 121
no no 271-1. 271-1.
Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment
Bill2005, Bill2005, 358 358
hand hand to to him him stop touching touching a a hot hot element. element. I I will will also also look look at at how how the the situation situation differs differs when when the the
The The scenario scenario I I will will use use for for this this analysis analysis is is the the situation situation where where a a parent parent smacks smacks a a child child on on the the
or or striking striking actions. actions.
a) a) Force Force used used for for purposes purposes other other than than correction, correction, when when the the force force used used is is 'hitting' 'hitting'
Technically, Technically, a a child child can can still still be be hit, hit, so so long long as as the the reason reason behind behind the the hitting hitting is is not not correction. correction.
means means that that or or smacking striking striking actions actions have have not not been been abolished abolished by by the the amended amended s59. s59.
legitimizes legitimizes the the use use of of force force for for other other reasons. reasons. Because Because 'reasonable 'reasonable force' force' is is left left undefined, undefined, it it
parental parental control control provision provision now now prohibits prohibits the the use use of of force force for for the the purposes purposes of of correction, correction, and and
correction. correction. The The use use of of force force for for any any other other reason reason technically technically amounted amounted to to assault. assault. The The new new
long long as as the the force force used used was was reasonable reasonable in in the the circumstances, circumstances, and and was was for for the the purposes purposes of of
The The parental parental use use of of force force against against a a child child was was justified justified prior prior to to the the 2007 2007 amendment amendment to to s59, s59, so so
2. 2. The The use use of of force force for for the the purposes purposes other other than than correction. correction.
hit hit their their child child for for whatever whatever reason. reason.
from from domestic domestic discipline discipline because because they they are are not not specific specific to to children, children, or or a a parent's parent's prerogative prerogative to to
However However other other defences defences that that are are already already in in existence existence might might apply. apply. They They are are distinguishable distinguishable
repealed, repealed, a a common common law law defence defence of of domestic domestic discipline discipline could could not not be be raised raised in in its its place. place.
provision provision may may have have codified." This This means means that that in in the the event event that that s59 s59 was was completely completely
358 358
of of section section 59 59 ought ought not not revive revive any any old old common common law law justification, justification, excuse excuse or or defence defence that that the the
In In the the explanatory explanatory note note to to Sue Sue Bradford's Bradford's original original Bill, Bill, it it was was made made explicit explicit that that "the "the repeal repeal
122 122
° °
Crimes Crimes Act Act 1961. 1961.
36
chapter chapter 3. 3.
Police Police v. v. Kawiti Kawiti [2000] [2000] 1 1 NZLR NZLR 117. 117. Also Also see see legal legal opinion opinion on on Peter Peter Williams Williams QC QC
in in 359 359
necessary necessary in in order order to to prevent prevent the the commission commission of of an an offence offence which which would would be be likely likely to to cause cause
certain certain offences. offences. In In that that section, section, a a person person is is justified justified in in using using force force that that is is reasonably reasonably
could could be be raised, raised, which which is is a a justification justification for for the the use use of of force force for for the the prevention prevention of of suicide suicide or or
properly properly raised raised because because there there is is
no no real real imminent imminent threat threat or or danger. danger. is is possible possible It It that that s41
360 360
intention intention was was not not correction, correction, and and it it is is not not the the sort sort of of situation situation where where necessity necessity could could be be
on on the the hand hand for for this this could could not not have have been been covered covered by by the the domestic domestic discipline discipline defence defence if if the the
but but rather rather to to stop stop the the child child breaking breaking objects objects that that do do not not belong belong to to the the parent parent or or child. child. A A smack smack
because because the the motive motive is is not not necessarily necessarily to to discipline discipline the the child, child, nor nor to to defend defend them them from from harm, harm,
Smacking Smacking a a child child on on the the hand hand to to stop stop him him touching touching things things in in a a shop shop is is slightly slightly different, different,
defence defence of of
necessity necessity would would almost almost certainly certainly have have justified justified the the action.
359 359
protecting protecting the the child child from from a a burn burn would would have have constituted constituted assault, assault, however however the the common common law law
protected protected by by s59. s59. Technically Technically under under the the old old law, law, a a smack smack on on the the hand hand for for the the purpose purpose of of
picking picking a a child child up, up, or or holding holding a a child child down down to to change change a a nappy, nappy, their their actions actions were were not not
application application of of force force for for any any other other purpose purpose amounted amounted to to assault, assault, therefore therefore when when parents parents were were
before before the the 2007 2007 amendment amendment was was force force used used for for the the purposes purposes of of correction. correction. Technically, Technically, the the
As As mentioned mentioned in in chapter chapter 3, 3, the the only only use use of of force force against against a a child child that that was was permitted permitted by by statute statute
amendment. amendment.
i) i) The The old old law: law: Domestic Domestic Discipline, Discipline, Section Section 59 59 of of the the Crimes Crimes Act Act 1961, 1961, prior prior to to the the 2007 2007
out out of of the the parent's parent's anger anger or or frustration. frustration.
child child is is hit hit on on the the hand hand to to stop stop him him touching touching things things in in a a shop, shop, and and when when he he is is hit hit on on the the hand hand
123 123
R R v v Drake Drake (1902) (1902) 22 22 NZLR NZLR 478; 478; R R v v Accused Accused (1994) (1994) DCR DCR 883 883
362 362
http://www. http://www. brookersonline.co.nz/databases/modus/criminal/adams/toc brookersonline.co.nz/databases/modus/criminal/adams/toc ?si= ?si= 15 15
Adams Adams on on Criminal Criminal Law Law
Hebert Hebert (1996) (1996) 107 107 CCC CCC (3d) (3d) 42; 42; 135 135 DLR DLR (4th) (4th) 577 577 (SCC)." (SCC)."
purpose, purpose, each each possibility possibility may may have have to to be be considered: considered: R R v v Kelbie Kelbie [1996] [1996] Crim Crim LR LR 802; 802; ...... R R v v
claims claims to to have have acted acted in in self-defence, self-defence, but but crime crime prevention prevention may may also also have have been been a a distinct distinct
S41 S41 has has been been raised raised in in cases cases where where self-defence self-defence is is the the alternative alternative justification. justification. person person a "If "If
361 361
vindictive vindictive or or stemming stemming from from malice. malice.
362 362
discipline discipline provision. provision. Section Section 59 59 could could not not be be raised raised to to defend defend the the use use of of force force that that was was
Smacking Smacking a a child child out out of of frustration frustration or or anger anger was was not permitted permitted not under under the the old old domestic domestic
presumably presumably because because police police have have always always had had the the discretion discretion not not to to prosecute prosecute minor minor offences. offences.
situation situation would would have have occurred occurred when when the the old old s59 s59 was was current, current, but but there there were were no no prosecutions, prosecutions,
things, things, for for example, example, leaving leaving the the shop, shop, or or picking picking the the child child up. up. Undoubtedly Undoubtedly this this sort sort of of
test, test, because because there there are are alternative, alternative, less less violent violent ways ways of of preventing preventing a a child child from from touching touching
'reasonably 'reasonably necessary' necessary' to to prevent prevent the the offence offence from from happening. happening. A A smack smack might might not not satisfy satisfy this this
than than breaking breaking objects objects in in a shop. a Furthermore, Furthermore, the the force force used used in in these these situations situations must must be be
361 361
implies implies that that the the sorts sorts of of situations situations contemplated contemplated in in 'certain 'certain offences' offences' would would be be more more serious serious
breaking breaking the the shop shop keeper's keeper's property. property. However, However, the the fact fact that that suicide suicide is is the the focus focus of of the the section section
such such offence. offence. Taken Taken literally, literally, this this section section might might justify justify the the use use of of force force to to stop stop a a child child
act act being being done done which which he he believes, believes, on on reasonable reasonable grounds, grounds, would, would, if if committed committed amount amount to to any any
immediate immediate and and serious serious injury injury to to the the person person or or property property of of any any one, one, or or in in order order to to prevent prevent any any
124 124
August August 2003. 2003.
New New Zealand, Zealand, Report Report for for UN UN Committee Committee on on the the Rights Rights of of the the Child, Child, CRC/C/93/ CRC/C/93/ Add.4, Add.4, 28 28
Action Action Children Children and and Youth Youth Aotearoa Aotearoa (inc (inc ), ), Parental Parental Corporal Corporal Punishment Punishment of of Children Children
in in
366 366
on on the the Physical Physical Punishment Punishment of of Children- 18 18 and and 19 19 June June 2004, 2004, Wellington. Wellington.
Courts, Courts, Children's Children's Issues Issues Centre Centre Seminar- "Stop "Stop it, it, it it hurts hurts me": me": Research Research and and Perspectives Perspectives
Hancock, Hancock, J., J., (2004) (2004) The The Application Application of of Section Section 59 59 of of the the Crimes Crimes Act Act in in the the New New
Zealand Zealand
365 365
Supra Supra No. No. 20, 20, para para 11 11
364 364
Specifically Specifically s59(1)(a) s59(1)(a)
363 363
punishment punishment of of children, making making the the test test entirely entirely subjective subjective and and inconsistent inconsistent across across cases. cases.
366 366
intrinsically intrinsically linked linked with with decision decision maker's maker's individual individual moral moral position position the the on issue issue of of corporal corporal
of of domestic domestic discipline, discipline, and and it it has has been been suggested suggested that that the the success success of of the the defence defence was was
365 365
circumstances. circumstances. This This test test has has been been notoriously notoriously inconsistently inconsistently applied applied in in the the past, past, in in the the context context
element, element, depending depending the the on fact fact finder's finder's particular particular construal construal of of what what is is reasonable reasonable in in the the
Therefore, Therefore, a a parent parent might might be be justified justified in in smacking smacking a a child's child's hand hand as as he he reaches reaches for for the the
bedroom.) bedroom.) "
364 364
the the path path of of an an oncoming oncoming car, car, carrying carrying a a child child out out of of the the supermarket supermarket or or to to his his
child's child's hand hand away away from from boiling boiling a pot pot on on the the stove, stove, pushing pushing or or pulling pulling a a child child out out of of
necessarily necessarily be be apt apt for for some some of of the the parental parental interventions interventions in in issue issue (e.g. (e.g. knocking knocking a a
"[a]lternative "[a]lternative language language that that was was suggested suggested to to us, us, such such as as "restraint" "restraint" would would not not
or or the the like, like, and and not not smacking: smacking:
amendment, amendment, intentionally intentionally did did not not specify specify that that the the force force used used must must be be in in the the form form of of restraint restraint
'reasonable'. 'reasonable'. The The Justice Justice and and Electoral Electoral Committee, Committee, in in considering considering options options for for the the s59 s59
force' force' test test has has survived survived the the amendment, amendment, and and there there is is no no guidance guidance as as to to amounts amounts what to to
hot hot element. Nothing Nothing in in s59 s59 prohibits prohibits smacking smacking as as the the type type of of force force used. used. The The 'reasonable 'reasonable
363 363
designed designed to to address address the the issue issue of of parental parental force force in in circumstances circumstances such such as as a a child child reaching reaching for for a a
The The amendments amendments in in subsection subsection 1 1 of of the the new new Parental Parental Control Control provision provision are are specifically specifically
amendment. amendment.
ii) ii) The The new new law: law: Parental Parental Control, Control, Section Section 59 59 of of the the Crimes Crimes Act Act 1961, 1961, after after the the 2007 2007
125 125
themselves. themselves. See See Appendix Appendix 3 3
child, child, by by way way of of example, example, from from damaging damaging or or stealing stealing property, property, or or assaulting assaulting other other people people or or
every every person person in in the the place place of of parent parent a of of the the child child can can use use reasonable reasonable force force to to prevent prevent their their
The The Police Police Practice Practice permits permits Guide the the use use of of force force for for this this reason: reason: "[a] "[a] parent parent of of a a child child and and
http://www. http://www. brookersonline.co.nz/databases/modus/criminal/adams/toc brookersonline.co.nz/databases/modus/criminal/adams/toc ?si= ?si= 15 15
Adams Adams on on Criminal Criminal Law Law
369 369
See See Appendix Appendix 3 3
368 368
(1986) (1986) 3 3 FRNZ FRNZ 1 1 at at 12 12
367 367
the the conduct conduct amounts amounts to to a a criminal criminal offence. offence.
369 369
is is unclear unclear on on this, this, but but it it might might be be sufficient sufficient that that the the parent parent merely merely has has a a reasonable reasonable belief belief that that
conduct conduct that that the the child child is is engaging engaging in in might might not not necessarily necessarily need need to to be be criminal. criminal. The The provision provision
from from engaging engaging "in "in conduct conduct that that amounts amounts to to a a criminal criminal offence." offence." Adams Adams suggests suggests that that the the
Section Section 59(1)(b) 59(1)(b) could could also also potentially potentially be be raised, raised, as as a a justification justification of of the the preventing child child
even even necessarily necessarily need need to to be be touching touching things things to to warrant warrant a a smack, smack, he he need need only only be be yelling. yelling.
"yelling "yelling
and and screaming screaming or or throwing throwing objects objects or or food". This This means means the the that child child does does not not
368 368
owner's owner's property. property. The The police police practice practice guide guide loosely loosely describes describes amounts amounts what to to disruption disruption as as
disruptive disruptive behaviour, behaviour, insofar insofar as as it it would would cause cause disruption disruption for for the the child child to to break break the the shop shop
s59(1). s59(1). The The action action could could be be defined defined as as preventing preventing the the child child from from engaging engaging in in offensive offensive or or
Smacking Smacking a a child's child's hand hand to to stop stop him him touching touching objects objects in in a a shop shop might might be be justifiable justifiable under under
same same problem. problem.
The The lack lack of of statutory statutory definition in in definition the the Control Control Parental provision provision will will potentially potentially lead lead to to the the
can can be be perceived perceived to to be be the the current current social social view view at at the the time. time.
[ w w [ ]hat ]hat is is "reasonable" "reasonable" must must be be a a matter matter of of degree degree and and will will depend depend large large in on on what what
Kendall Kendall v v Director-General Director-General of of Social Social Welfare:
367 367
One One person's person's light light smack smack is is another another person's person's strong strong whack. whack. As As Judge Judge lnglis lnglis said said of of s59 s59 in in
126 126
place place in in this this example example to to heighten heighten the the 'annoyance 'annoyance factor' factor' for for a a parent. parent.
The The provision provision does does not not require require the the behaviour behaviour to to be be in in any any way way public. public. I I have have used used a a public public
371 371
See See Appendix Appendix 3 3
370 370
yelling yelling was was annoying. annoying.
at at home, home, a a parent parent might might be be justified justified in in giving giving him him a a smack, smack, not not as as discipline, discipline, but but because because his his
'displeasing' 'displeasing' or or if if they they are are yelling. yelling.
Therefore, Therefore, if if a a child child is is yelling yelling in in a a public public place or or even even
371 371
Following Following this this guide, guide, it it is is enough enough to to satisfy satisfy s59(l)(c) s59(l)(c) if if the the child child is is being being 'annoying' 'annoying' or or
and and screaming screaming or or throwing throwing objects objects or or food."
370 370
depending depending upon upon the the specific specific circumstances, circumstances, could could include, include, by by way way of of example, example, yelling yelling
Examples Examples of of behaviour behaviour that that may may amount amount to to offensive offensive or or disruptive disruptive behaviour, behaviour,
"1. "1. Causing Causing or or tending tending to to disruption disruption ...... " "
The The Shorter Shorter Oxford Oxford English English Dictionary Dictionary defines defines "disruptive" "disruptive" as: as:
3. 3. Giving, Giving, or or of of a a nature nature to to give, give, offence; offence; displeasing; displeasing; annoying; annoying; insulting insulting ...... " "
2. 2. Hurtful, Hurtful, injurious injurious ......
"1. "1. Pertaining Pertaining or or tending tending to to attack; attack; aggressive; aggressive; ......
"The "The Shorter Shorter Oxford Oxford English English Dictionary Dictionary defines defines "offensive" "offensive" as: as:
Practice Practice Guide Guide has has attempted attempted to to do do so: so:
irritating. irritating. The The provision provision itself itself does does not not define define 'offensive' 'offensive' or or 'disruptive', 'disruptive', so so the the Police Police
reasons reasons that that they they previously previously were were not not allowed allowed to, to, namely namely when when the the child child being being is annoying annoying or or
in in offensive offensive or or disruptive disruptive behaviour behaviour might might have have opened opened the the door door for for parents parents to to smack smack for for
Parental Parental Control Control provision. provision. Exemplifying Exemplifying the the use use of of force force to to prevent prevent the the child child from from engaging engaging
A A justification justification for for smacking smacking a a child child out out of of anger anger or or frustration frustration might might be be found found under under the the new new
127 127
Crimes Crimes Act Act 1961, 1961, prior prior to to the the 2007 2007 amendment. amendment.
used used is is hitting hitting or or striking striking actions: actions: i) i) The The old old law: law: Domestic Domestic Discipline, Discipline, Section Section 59 59 of of the the
See See above above analysis: analysis: The The use use of of force force for for purposes purposes other other than than correction correction when when the the force force
372 372
was was not not correction, correction, however however common common the law law defence defence of of necessity necessity would would have have been been available available
Under Under the the old old law, law, this this type type of of force force still still technically technically amounted amounted to to assault, assault, because because its its purpose purpose
amendment. amendment.
i) i) The The old old law: law: Domestic Domestic Discipline, Discipline, Section Section 59 59 of of the the Crimes Crimes Act Act 1961, 1961, prior prior to to the the 2007 2007
runs runs onto onto the the street, street, or or restraining restraining a a child child while while changing changing his his nappy. nappy.
purposes purposes of of correction. correction. A A common common scenario scenario is is that that of of a a parent parent restraining restraining a a child child before before he he
This This analysis analysis is is looking looking at at the the application application of of force force that that is is not not hitting hitting and and is is not not for for the the
'hitting' 'hitting' or or striking striking actions actions
b) b) Force Force used used for for purposes purposes other other than than correction, correction, when when the the force force used used is is not not
hitting hitting their their children. children. Hitting Hitting per per se se would would have have to to stop. stop.
reason. reason. Under Under this this regime, regime, there there would would be be no no loop loop hole hole for for parents parents to to hide hide behind behind when when
remove remove a a defence defence for for smacking smacking indicates indicates that that smacking smacking is is not not to to be be tolerated, tolerated, for for whatever whatever
as as a a behaviour, behaviour, was was abolished abolished in in the the repeal. repeal. The The fact fact that that the the legislature legislature went went to to the the effort effort to to
smacking. smacking. Similarly, Similarly, police police might might more more readily readily prosecute prosecute smacking smacking cases, cases, because because smacking, smacking,
the the application application of of force force for for purposes purposes other other than than correction, correction, when when the the force force used used is is hitting hitting or or
is is possible possible It It that that if if s59 s59 was was repealed, repealed, it it might might be be harder harder to to resort resort common common to law law defences defences for for
amount amount to to assault, assault, however however common common
law law justifications justifications might might cover cover some some circumstances?
72 72
than than correction correction would would not not have have changed. changed. Technically Technically the the use use of of force force on on a a child child would would
If If s59 s59 had had simply simply been been repealed, repealed, the the situation situation regarding regarding the the use use of of force force for for purposes purposes other other
if if iii) iii) The The position position Section Section 59 59 had had simply simply been been repealed. repealed.
128 128
Supra Supra No. No. 20, 20, para para 10 10
374 374
Collins Collins v v Wilcock. Wilcock. Supra Supra No. No. 6 6
373 373
children. children. age age The of of the the child child is is therefore therefore relevant relevant in in determining determining the the reasonableness reasonableness of of the the
of of force force against against children children in in the the infant infant stage, stage, would would and be be unlikely unlikely to to be be applied applied to to older older
justification justification would would not not cover. cover. Adams Adams suggests suggests s59(1)(d) s59(1)(d) is is intended intended to to cover cover applications applications the
such such a a wide wide range range of of behaviours, behaviours, it it is is difficult difficult to to imagine imagine the the sorts sorts of of contact contact that that this this
'Performing 'Performing the the normal normal daily daily tasks tasks that that are are incidental incidental to to good good care care and and parenting' parenting' describes describes
daily daily task task that that is is incidental incidental to to good good care care and and parenting. parenting.
Section Section 59(1)(d) 59(1)(d) would would justify justify the the force force used used to to change change a a nappy, nappy, as as this this is is arguably arguably a a normal normal
force force in in the the form form of of restraint restraint to to protect the the protect child child from from harm harm as as runs runs he out out on on to to the the street. street.
parenting' parenting' interventions, interventions, short short of of correction." Section Section 59(1)(a) 59(1)(a) allows allows a a parent parent to to apply apply
374 374
to to s59, s59, the the Justice Justice and and Electoral Electoral Committee Committee said said that that it it would would "offer "offer protection protection for for 'good 'good
correction. correction. When When considering considering the the current current Parental Parental Control Control provision provision as as a a possible possible amendment amendment
considered considered here: here: Non-violent, Non-violent, everyday everyday uses uses of of parental parental force force for for purposes purposes other other than than
Arguably, Arguably, the the amendments amendments to to s59 s59 were were specifically specifically designed designed to to legitimise legitimise the the kind kind of of force force
amendment. amendment.
ii) ii) The The new new law: law: Parental Parental Control, Control, Section Section 59 59 of of the the Crimes Crimes Act Act 1961, 1961, after after the the 2007 2007
prosecutions prosecutions for for assault assault in in situations situations of of normal normal parental parental contact contact that that did did not not involve involve hitting. hitting.
discretion discretion not not to to prosecute prosecute minor minor cases, cases, and and thus thus there there were were never never any any ridiculous ridiculous
covered covered nappy nappy or or changing similar similar situations, situations, if if they they ever ever made made it it to to prosecution. prosecution. Police Police had had a a
contact contact
which which is is generally generally acceptable acceptable in in the the ordinary ordinary conduct conduct of of daily daily life" might might have have
373 373
to to justify justify the the use use of of force force to to stop stop a a child child running running on on to to a a street. street. The The justification justification for for "physical "physical
129 129
Crimes Crimes Act Act 1961, 1961, prior prior to to the the 2007 2007 amendment. amendment.
used used is is hitting hitting or or striking striking actions: actions: i) i) The The old old law: law: Domestic Domestic Discipline, Discipline, Section Section 59 59 of of the the
See See above above analysis: analysis: The The use use of of force force for for purposes purposes other other than than correction correction when when the the force force
377 377
Supra Supra No. No. 266 266
376 376
At At CA59.03. CA59.03.
375 375
The The following following table table is is a a summary summary of of the the three three options options discussed discussed above, above,
c) c) Summary Summary of of Analysis Analysis
a a complete complete repeal repeal of of s59 s59 would would have have changed changed that. that.
never never any any problems problems with with nappy nappy changing changing and and child child restraint restraint in in the the past, past, and and it it is is unlikely unlikely that that
assault, assault, however however common common law law justifications justifications would would cover cover most most circumstances? There There were were
77 77
defence defence in in the the past. past. Technically Technically the the use use of of force force on on a a child, child, even even restraint, restraint, would would amount amount to to
than than correction, correction, regardless regardless of of its its form, form, would would not not have have changed, changed, because because there there never never existed existed a a
Again, Again, ifs ifs 59 59 had had been been repealed, repealed, the the situation situation regarding regarding the the use use of of force force for for purposes purposes other other
if if iii) iii) The The position position Section Section 59 59 had had simply simply been been repealed. repealed.
intended intended to to update update its its purpose, purpose, meant meant that that old old legal legal tests tests were were revived. revived.
test, test, it it would would seem seem like like a a step step back back in in time. time. It It would would be be unfortunate unfortunate if if amendments amendments the to to s59, s59,
party party to to UNCRC. UNCRC. religious religious If If and and cultural cultural factors factors were were brought brought back back into into the the reasonableness reasonableness
this this reasoning, reasoning, preferring preferring a a uniform uniform test test for for all all cultures, cultures, since since New New Zealand Zealand had had a a become
some some domestic domestic discipline discipline cases, cases, however however in in Ausage Ausage v v Ausage, Ausage, Judge Judge Somerville Somerville avoided avoided
376 376
Cultural Cultural values values were were taken taken into into account account in in assessing assessing the the reasonableness reasonableness of of the the force force used used in in
into into account account relevant relevant cultural cultural and, and, perhaps, perhaps, religious religious understandings."
5 5
3 3
"[a]ny "[a]ny assessment assessment of of the the use use of of force force to to be be justified justified under under this this head head have have to to take take ma~ ma~
"normal" "normal" daily daily tasks tasks of of "good" "good" parenting: parenting:
force. force. is is also also suggested suggested It It that that cultural cultural values values may may impact impact on on what what is is considered considered to to be be
130 130
involve involve hitting. hitting.
that that do do not not
cover cover situations situations to to be be prosecuted. prosecuted.
defences defences might might cases cases are are unlikely unlikely
common common law law inconsequential inconsequential
• • Existing Existing means means that that
• • Police Police discretion discretion
to to be be prosecuted. prosecuted. to to be be prosecuted. prosecuted. to to be be prosecuted. prosecuted.
cases cases are are unlikely unlikely cases cases are are unlikely unlikely cases cases are are unlikely unlikely involve involve hitting. hitting.
inconsequential inconsequential inconsequential inconsequential inconsequential inconsequential that that do do not not
means means means means that that that that means means cover cover that that situations situations
• • Police Police discretion discretion • • Police Police discretion discretion • • Police Police discretion discretion defences defences might might
common common law law
(no (no section section 59) 59) However. However. However. However...... However. However. .. .. • • Existing Existing
Repeal Repeal NOT NOT ALLOWED ALLOWED NOT NOT NOT NOT ALLOWED ALLOWED ALLOWED ALLOWED NOT NOT ALLOWED ALLOWED
to to be be prosecuted. prosecuted. to to be be prosecuted. prosecuted.
cases cases are are unlikely unlikely cases cases are are unlikely unlikely
inconsequential inconsequential inconsequential inconsequential
means means that that means means that that
• • Police Police • • Police Police discretion discretion discretion discretion
force force under under s59(1) s59(1) force force under under s59(1) s59(1)
a a legitimate legitimate use use of of a a legitimate legitimate use use of of
be be reclassified reclassified as as be be reclassified reclassified as as circumstances. circumstances. circumstances. circumstances.
• • Might Might be be able able to to • • Might Might be be able able to to reasonable reasonable in in the the reasonable reasonable in in the the
(new (new section section 59) 59) force force used used was was force force used used was was
However However ...... However However ...... As As long long as as the the As As long long as as the the
Control Control
Parental Parental NOT NOT ALLOWED ALLOWED NOT NOT ALLOWED ALLOWED ALLOWED ALLOWED ALLOWED ALLOWED
to to be be prosecuted. prosecuted.
cases cases are are unlikely unlikely
inconsequential inconsequential
Re Re I, I, M M and and T, T, J J means means that that
to to be be prosecuted. prosecuted. • • Police Police discretion discretion
cases cases are are unlikely unlikely Children Children
inconsequential inconsequential Re Re the the Five Five M R v v R M Giles Giles involve involve hitting. hitting.
means means that that that that do do not not
• • Police Police discretion discretion circumstances circumstances circumstances circumstances cover cover situations situations
reasonable reasonable in in the the reasonable reasonable in in the the defences defences might might
(old (old section section 59) 59) force force used used was was force force used used was was R R vAccused vAccused common common law law
As As long long as as the the As As long long as as the the R R vDrake vDrake • • Existing Existing
Discipline Discipline
Domestic Domestic ALLOWED ALLOWED ALLOWED ALLOWED NOT NOT ALLOWED ALLOWED NOT NOT ALLOWED ALLOWED
time-out. time-out.
Analysis. Analysis. correction correction, correction, correction e.g. e.g. NOT NOT correction. correction. NOT NOT correction. correction.
Summary Summary of of purposes purposes of of purposes purposes of of purpose purpose that that is is purpose purpose that that is is
smacking smacking for for the the force force for for the the smacking smacking for for a a force force for for a a
Table Table Two. Two. Hitting Hitting Other Other or or uses uses of of Hitting Hitting Other Other or or uses uses of of
131 131
would would have have abolished abolished this this defence. defence.
provision provision insofar insofar as as the the use use of of force force for for the the purposes purposes of of is is correction concerned. concerned. A A repeal repeal
Two Two demonstrates, demonstrates, repealing repealing the the section section achieves achieves the the same same purpose purpose as as the the Parental Parental Control Control
The The law law would would have have been been clearer, clearer, and and safer, safer, if if s59 s59 had had been been repealed repealed altogether. altogether. As As Table Table
but but it it is is poor poor law law making making nonetheless. nonetheless.
amendment amendment that that allows allows children children to to be be assaulted assaulted in in this this way way may may not not have have been been intentional, intentional,
acceptable acceptable to to hit hit adults, adults, and and it it should should not not be be acceptable acceptable to to hit hit children. children. Legislating Legislating an an
and and protection protection from from assault assault would would have have involved involved the the prohibition prohibition of of all all hitting. hitting. is is not not It It
integrity. integrity. Bringing Bringing children's children's rights rights up up to to the the level level of of adults adults with with respect respect to to integrity integrity bodily
defence defence for for hitting hitting children children cannot cannot be be said said to to have have furthered furthered children's children's rights rights to to bodily bodily
the the old old law, law, and and would would not not exist exist if if s59 s59 had had simply simply been been repealed. repealed. Creating Creating a a brand brand new new
legitimised legitimised the the use use of of force, force, including including hitting, hitting, for for all all other other purposes. purposes. This This did did not not exist exist under under
the the new new provision provision has has banned banned hitting hitting children children for for the the purposes purposes of of correction, correction, it it has has
in in the the old old Domestic Domestic Discipline Discipline provision. provision. is is This not not necessarily necessarily a a good good thing, thing, because because while while
force force (hitting (hitting and and non-hitting) non-hitting) may may be be applied applied to to a a child child are are a a complete complete mirror mirror image image to to those those
Table Table Two Two demonstrates demonstrates how how the the situations situations in in the the new new Parental Parental Control Control provision provision in in which which
solution solution to to the the problem problem of of inconsistent inconsistent application application that that existed existed under under the the old old law. law.
host host of of reasons, reasons, except except correction. correction. There There is is no no definition definition of of reasonable, reasonable, so so there there has has been been no no
smacking smacking in in situations situations that that never never existed existed before. before. Now Now a a parent parent may may smack smack a a child child for for a a whole whole
Control Control provision provision has has not not banned banned smacking. smacking. On On the the contrary, contrary, it it has has opened opened the the door door for for
Perhaps Perhaps the the most most pertinent pertinent point point to to be be taken taken from from the the analysis analysis is is that that the the new new Parental Parental
132 132
Nicholson, Nicholson, A. A. Choose Choose to to hug hug not not hit hit (2008) (2008) 46 46 Family Family Court Court Review Review 1, 1, 11-36 11-36
378 378
concerned, concerned, because because recognition recognition of of their their inherent inherent vulnerability vulnerability and and need need for for protection protection already already
Repealing Repealing s59 s59 would would not not have have left left children children in in a a neutral neutral position position insofar insofar as as assault assault is is
underlying underlying human human rights rights first first and and foremost, foremost, and and then then respect respect their their dependency. dependency.
should should guard guard our our smallest smallest and and most most vulnerable vulnerable citizens citizens the the most, most, to to recognize recognize their their
needs needs to to give give extra extra protection protection from from assault assault to to children. children. seems seems like like It It common common sense sense that that we we
To To really really recognise recognise a a child's child's right right to to protection, protection, the the law law needs needs to to be be more more than than just just neutral. neutral. It It
not not done done any any better. better.
gave gave them them less less protection protection than than everyone everyone else. else. Arguably, Arguably, the the Parental Parental Control Control provision provision has has
from from harm, harm, because because not not only only did did it it not not give give them them special special protection protection from from assault, assault, it it actually actually
Discipline Discipline provision provision was was completely completely at at odds odds with with the the notion notion that that children children should should be be protected protected
are are specific specific to to children, children, by by virtue virtue of of their their immaturity immaturity and and vulnerability. vulnerability. The The Domestic Domestic
would would also also have have recognised recognised a a child's child's right right to to protection. protection. In In chapter chapter one one I I explored explored rights rights that that
adults adults
and and all all other other members members of of society society with with regards regards to to bodily bodily integrity integrity and and assault, it it
378 378
A A straightforward straightforward repeal repeal of of s59 s59 would would not not only only have have placed placed children children on on an an equal equal footing footing with with
3. 3. Furthering Furthering children's children's rights rights beyond beyond repeal. repeal.
made made things things worse. worse.
The The Control Control Parental provision provision has has not not only only failed failed to to improve improve anything anything in in this this area, area, it it has has
repeal repeal would would not not have have opened opened all all sorts sorts of of loopholes loopholes for for the the use use of of force force that that involves involves hitting. hitting.
contemplated contemplated anything anything other other than than corrective corrective force force anyway. anyway. But But most most importantly, importantly, a a simple simple
changed changed the the current current reality, reality, because because the the Domestic Domestic old Discipline Discipline provision provision never never
been been much much more more effective, effective, and and would would have have abolished abolished hitting hitting or or smacking. smacking. It It would would not not have have
Regarding Regarding the the use use of of force force for for purposes purposes other other than than correction, correction, a a simple simple repeal repeal would would have have
133 133
common common assault. assault.
The The maximum maximum penalty penalty for for is is assault 2 2 years, years, compared compared with with a a maximum maximum of of one one year year for for
380 380
Assault Assault on on a a child, child, or or by by a a male male on on a a female. female.
379 379
It It is is unlikely unlikely that that for for smacking, smacking, police police would would prosecute prosecute under under s195, s195, cruelty cruelty to to a a child, child, which which
196? Therefore, Therefore, assault assault against against children children is is more more serious serious than than assault assault against against other other citizens. citizens.
80 80
assault assault under under s194, which which carries carries a a heavier heavier penalty penalty than than for for common common assault assault under under section section
379 379
Under Under the the Crimes Crimes Act, Act, smacking smacking a a child child under under the the age age of of 14 14 would would technically technically amount amount to to
can can be be legally legally hit. hit.
unlike unlike other other citizens, citizens,
assault. assault. Children, Children,
protection protection from from assault. assault. assault. assault.
have have less less rights rights to to protection protection from from from from protection
Control. Control. Children Children adults adults enjoy enjoy equal equal extra extra rights rights to to
and and Parental Parental and and Children 59. 59. Children Children have have
Domestic Domestic Discipline Discipline position. position. Neutral Repeal Repeal of of section section
D D D D D D
integrity integrity integrity integrity
No No physical physical Full Full physical physical
Figure Figure One: One: Continuum Continuum of of children's children's right right to to protection protection from from assault: assault:
assault assault would would have have naturally naturally fallen fallen into into place. place.
children. children. Therefore, Therefore, if if s59 s59 had had been been simply simply repealed, repealed, children's children's rights rights to to protection protection from from
exists exists in in the the Crimes Crimes Act, Act, in in the the form form of of a a special special provision provision dedicated dedicated to to assaults assaults against against
134 134
s 1 1 s 04(g) 04(g) Sentencing Sentencing Act Act 2002. 2002.
383 383
See See Appendix Appendix 4 4
382 382
dissertation, dissertation, University University of of Otago, Otago, page page 23 23
Pickford, Pickford, S. S. (2006) (2006) The The Anti-Smacking Anti-Smacking Bill: Bill: Implications Implications for for Parents. Parents. LLB LLB (Honours) (Honours)
breaking breaking her her arm." arm."
the the child child with with a a rolling rolling pin pin and and twisting twisting the the child's child's arm arm behind behind her her back, back, consequently consequently
cloves. cloves. R v v R Murphy Murphy unreported, unreported, CA CA 18/83, 18/83, 2 2 August August 1893, 1893, Cooke Cooke J, J, involved involved a a mother mother hitting hitting
them them in in cold cold baths, baths, forcing forcing them them to to eat eat rotten rotten food, food, and and in in one one case, case, forcing forcing the the child child to to eat eat
example, example, R v v R Mead Mead [2002] [2002] 1 1 NZLR NZLR 594 594 (CA) (CA) involved involved a a step step father father beating beating children, children, placing placing
"The "The case case law law on on sl95 sl95 generally generally involves involves more more serious serious and and sustained sustained ill-treatment. ill-treatment. For For
381 381
would would be be more more inclined inclined to to prosecute prosecute an an assault assault if if the the victim victim was was a a child. child.
adults. adults. Having Having this this factor factor incorporated incorporated into into the the prosecution prosecution guidelines guidelines would would mean mean that that police police
vulnerable vulnerable and and in in need need of of protection, protection, should should be be treated treated as as more more serious serious than than assaults assaults against against
victim victim is is vulnerable. vulnerable. Similarly, Similarly, assaults assaults against against children, children, who, who, by by virtue virtue of of being being children, children, are are
victim's victim's vulnerability vulnerability due due to to age. This This indicates indicates the the that crime crime is is more more culpable culpable if if the the
383 383
should should be be extended extended beyond beyond ten ten years, years, one one of of the the factors factors to to be be taken taken into into account account is is the the
legislation. legislation. For For example, example, when when deciding deciding whether whether the the minimum minimum non-parole non-parole term term for for murder murder
The The victim's victim's age age and and vulnerability vulnerability is is already already a a relevant relevant consideration consideration in in sentencing sentencing
The The youth, youth, old old age, age, physical physical or or mental mental health health of of the the offender offender is is currently currently taken taken into into account. account.
vulnerability vulnerability of of the the victim victim could could be be added added to to the the list list of of factors factors to to be be considered considered under under 3.3.2. 3.3.2.
sufficient sufficient to to fully fully recognize recognize children's children's rights rights to to protection. protection. Furthermore, Furthermore, the the age age and and
However, However, the the existing existing Solicitor Solicitor General's General's prosecution prosecution guidelines should should have have been been
382 382
practice practice guidelines guidelines to to aid aid in in prosecution prosecution decisions decisions for for smacking smacking and and other other child child assault assault cases. cases.
As As mentioned mentioned above, above, if if s59 s59 had had been been repealed repealed the the police police commissioner commissioner could could have have released released
in in conviction.
381 381
carries carries a a maximum maximum penalty penalty of of five five years, years, because because the the assault assault provision provision is is more more likely likely to to result result
135 135
rights. rights.
to to such such an an extent extent that that the the new new provision provision cannot cannot possibly possibly be be said said to to have have improved improved children's children's
never never existed existed before. before. The The message message about about children's children's right right to to bodily bodily integrity integrity has has been been diluted diluted
undermine undermine the the abolition. abolition. Furthermore, Furthermore, the the provision provision has has created created fresh fresh avenues avenues for for hitting hitting that that
banned banned on on the the face face of of it, it, however however the the inclusion inclusion of of an an affirmation affirmation of of police police discretion discretion serves serves to to
purposes purposes other other than than correction correction is is still still permitted. permitted. Hitting Hitting for for disciplinary disciplinary purposes purposes has has been been
who who can can be be legally legally hit: hit: the the Parental Parental provision provision Control is is drafted drafted in in such such a a way way that that hitting hitting for for
children's children's rights rights in in this this area area was was purely purely cosmetic. cosmetic. Children Children are are still still the the only only in in people society society
substitution substitution of of 'Parental 'Parental Control' Control' for for 'Domestic 'Domestic Discipline' Discipline' means means that that the the advancement advancement of of
would would cease cease to to be be the the only only group group in in society society who who could could legally legally be be hit. hit. However, However, the the
towards towards recognising recognising children's children's rights. rights. Repealing Repealing this this section section would would have have meant meant that that children children
The The 2007 2007 amendment amendment to to the the Crimes Crimes Act Act to to abolish abolish domestic domestic discipline discipline went went some some way way
entitled entitled to to this this right. right.
parents parents or or the the state. state. It It is is fundamental fundamental a human human right, right, since since and children children are are humans humans they they are are
of of the the fact fact they they are are children, children, nor nor is is it it something something extraordinary extraordinary that that imposes imposes an an extra extra duty duty on on
Children Children have have a a right right not not to to be be hit. hit. This This is is not not some some special special right right afforded afforded to to them them by by virtue virtue Conclusion. Conclusion.
136 136
remove remove the the exemption exemption for for guardians guardians in in the the prohibition prohibition of of corporal corporal punishment punishment in in schools. schools.
Clause Clause 5 5 makes makes amendments amendments consequential to to section section 139A 139A of of the the Education Education Act Act 1989 1989 to to
Clause Clause 4 4 simply simply repeals repeals section section 59 59
defence defence the the that provision provision may may have have codified. codified.
and and the the repeal repeal of of section section 59 59 ought ought not not revive revive any any old old common common law law justification, justification, excuse excuse or or
assault assault under under s194(a) s194(a) of of the the Crimes Crimes Act, Act, a a comparatively comparatively new new provision provision in in the the criminal criminal law, law,
the the use use of of force force against against children children is is concerned. concerned. The The use use of of force force on on a a child child may may an an constitute
guardians guardians will will be be removed. removed. They They will will now now be be in in the the same same position position as as else else everyone so so far far as as
The The effect effect of of this this amendment amendment is is that that the the statutory statutory protection protection for for use use of of force force by by parents parents and and
reasonable reasonable in in the the circumstances. circumstances. The The Bill Bill will will repeal repeal that that provision. provision.
their their children children where where they they are are doing doing so so for for the the purposes purposes of of correction correction and and the the force force used used is is
1961 1961 acts acts as as a a justification, justification, excuse excuse or or defence defence for for parents parents or or guardians guardians using using force force against against
of of domestic domestic discipline, discipline, being being inflicted inflicted on on children. children. Presently, Presently, section section 59 59 of of the the Crimes Crimes Act Act
The The purpose purpose of of this this is is Bill to to stop stop force, force, and and associated associated violence violence and and harm harm under under the the pretence pretence
Explanatory Explanatory note note
Member's Member's Bill Bill
Amendment Amendment Bill Bill
Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline)
Appendix Appendix 1 1
137 137
unless unless that that person person is is a a guardian guardian of of the the student student or or child". child".
(2) (2) Section Section 139A(2) 139A(2) of of the the Education Education Act Act 1989 1989 is is amended amended by by the the omitting words words ", ",
unless unless that that person person is is a a guardian guardian of of the the student student or or child". child".
(1) (1) Section Section 139A(1) 139A(1) of of the the education education Act Act 1989 1989 is is amended amended by by the the omitting words", words",
5 5 Consequential Consequential amendments amendments to to Education Education Act Act 1989 1989
Section Section 59 59 of of the the principle principle Act Act is is repealed. repealed.
4 4 Domestic Domestic Discipline Discipline
parents parents as as a a justification justification for for disciplining disciplining children. children.
The The purpose purpose of of this this Act Act is is to to amend amend the the principle principle Act Act to to abolish abolish the the use use of of force force by by
3 3 Purpose Purpose
This This Act Act comes comes into into force force on on the the day day after after the the date date on on which which it it receives receives Royal Royal assent. assent.
2 2 Commencement Commencement
(2) (2) In In this this Act, Act, the the Crimes Crimes Act Act 1961 1961 is is called called "the "the principle principle Act". Act".
Amendment Amendment Act Act 2005. 2005.
(1) (1) This This Act Act is is the the Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline)
1 1 Title Title
The The Parliament Parliament of of New New Zealand Zealand enacts enacts as as follows: follows:
5. 5. Consequential Consequential amendments amendments to to Education Education Act Act 1989 1989
4. 4. Domestic Domestic discipline discipline
Purpose Purpose 3. 3.
2. 2. Commencement Commencement
1. 1. Title Title
Contents Contents
Member's Member's Bill Bill
Amendment Amendment Bill Bill
Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline)
Sue Sue Bradford Bradford
138 138
be be amended amended to to better better reflect reflect the the intention intention of of the the bill. bill. The The purpose purpose of of
We We recommend recommend that that clause clause 3, 3, which which states states that that purpose purpose of of the the bill, bill,
Purpose Purpose
Bill. Bill.
bill bill be be renamed renamed the the Crimes Crimes Section Section (Substituted 59) 59) Amendment Amendment
adequately adequately reflect reflect the the effect effect of of the the as as bill amended, amended, and and suggest suggest the the
We We recommend recommend that that the the title title of of the the bill bill be be amended, amended, as as it it does does not not
Title Title
Amendments Amendments
considered considered as as a a result result of of submissions submissions on on the the bill. bill.
The The remainder remainder of of commentary commentary the details details some some of of the the issues issues we we
that, that, despite despite our our best best intentions, intentions, agreement agreement was was not not reached. reached.
made made every every endeavour endeavour to to reach reach consensus consensus on on the the bill. bill. We We are are disappointed disappointed
the the majority majority recommends. recommends. We We would would like like to to emphasise emphasise that that we we
The The first first part part of of this this commentary commentary sets sets out out the the amendments amendments to to the the bill bill
be be a a defence. defence.
involves involves the the use use of of force force against against a a child, child, correction correction would would no no longer longer
position position as as any any other other person. person. charged charged If If with with any any offence offence that that
and and every every person person in in the the place place of of a a parent parent would would be be in in the the same same
introduced introduced repeals repeals this this provision. provision. In In the the absence absence of of section section 59 59 parents parents
against against their their children children for for the the purpose purpose of of correction. correction. The The bill bill as as
parents parents and and every every person person in in the the place place of of a a parent parent who who use use force force
Section Section 59 59 of of the the Crimes Crimes Act Act 1961 1961 provides provides a a statutory statutory defence defence for for
Introduction Introduction
amendments amendments shown. shown.
Bill Bill recommends recommends and by by majority majority that that it it be be passed passed with with the the
(Abolition (Abolition of of Force Force as as Justification Justification a Child Child for Discipline) Discipline) Amendment Amendment
The The Justice Justice and and Electoral Electoral Committee Committee has has examined examined the the Crimes Crimes
Recommendation Recommendation
Commentary Commentary
As As reported reported from from the the Justice Justice and and Electoral Electoral Committee Committee
Member's Member's Bill Bill
for for Child Child Discipline) Discipline) Amendment Amendment Bill Bill
Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification
Appendix Appendix 2 2
139 139
effective effective tool tool for for raising raising children, children, would would be be prohibited prohibited
· · that that the the use use of of physical physical discipline, discipline, which which they they argued argued is is an an
statutory statutory control control
to to raise raise them them as as they they see see fit fit would would be be eroded eroded by by a a form form of of
· · that that the the rights rights of of parents parents to to discipline discipline their their children children or or simply simply
result result of of minor minor acts acts of of physical physical discipline discipline
parents parents and and the the removal removal of of children children from from their their homes homes as as a a
· · that that repeal repeal of of section section 59 59 would would lead lead to to the the prosecution prosecution of of
of of concerns, concerns, including including the the following: following:
specific specific provisions provisions of of the the bill. bill. Opponents Opponents of of the the bill bill raised raised a a number number
child child discipline discipline and and associated associated matters matters generally, generally, rather rather than than on on
The The majority majority of of submitters submitters who who opposed opposed the the bill bill commented commented on on
Opposition Opposition to to the the bill bill
people. people. We We received received 247 247 submissions submissions from from organisations. organisations.
themselves themselves as as parents parents or or caregivers, caregivers, and and 76 76 as as children children or or young young
(1,471) (1,471) came came from from individuals. individuals. Of Of these, these, 385 385 submitters submitters identified identified
The The committee committee received received 1,718 1,718 submissions submissions on on the the bill. bill. The The majority majority
Summary Summary of of submissions submissions
Committee Committee consideration consideration
139A(l) 139A(l) and and (2) (2) of of the the Education Education Act Act 1989. 1989.
This This amendment amendment will will require require a a consequential consequential amendment amendment to to sections sections
amount amount to to an an offence. offence.
application application of of force force from from any any motivation motivation other other than than correction correction may may
a a gap gap in in the the law, law, as as under under the the current current wording wording of of section section 59 59 the the
and and every every person person in in the the place place of of parent. parent. a Additionally Additionally it it will will address address
interventions interventions that that are are not not for for the the purpose purpose of of correction correction by by parents parents
doing doing harm harm to to others. others. We We consider consider that that this this amendment amendment provides provides for for
from from harm, harm, providing providing normal normal daily daily care, care, and and preventing preventing the the child child
force force may may be be used used for for other other purposes purposes such such as as protecting protecting a a child child
the the purpose purpose of of correction. correction. The The new new section section 59 59 clarifies clarifies that that reasonable reasonable
remove remove the the defence defence of of using using "reasonable "reasonable force" force" against against a a child child for for
replaced replaced by by a a new new section section 59. 59. This This new new section section will will effectively effectively
We We recommend recommend that that section section 59 59 of of the the Crimes Crimes Act Act be be repealed repealed and and
Parental Parental control control
by by abolishing abolishing the the use use of of parental parental force force for for the the purpose purpose of of correction. correction.
children children to to live live in in a a safe safe and and secure secure environment environment free free from from violence violence
this this is is bill to to amend amend the the principal principal Act Act to to make make better better provision provision for for
140 140
protection protection to to children children (since, (since, for for example, example, a a lack lack of of
desired desired behaviour behaviour with with sufficient sufficient certainty certainty and and provided provided adequate adequate
· · It It would would be be very very difficult difficult to to draft draft a a definition definition that that captured captured the the
noted noted the the following following issues issues in in particular: particular:
and and ''unreasonable'' ''unreasonable'' force, force, and and the the possible possible consequences. consequences. They They
Other Other submitters submitters illustrated illustrated the the difficulties difficulties of of defining defining ''reasonable'' ''reasonable''
forms forms of, of, and reasons reasons and for, for, physical physical discipline. discipline.
They They were were often often illustrated illustrated with with examples examples of of acceptable acceptable and and unacceptable unacceptable
most most of of them them defining defining ''reasonable'' ''reasonable'' and and ''unreasonable'' ''unreasonable'' force. force.
A A number number of of submitters submitters suggested suggested specific specific amendments amendments to to the the bill, bill,
Proposed Proposed amendments amendments
reinforced reinforced with with Government Government and and support ongoing ongoing public public education. education.
section section 59 59 send send would positive positive a message, message, it it would would need need to to be be
A A number number of of supporters supporters of of the the bill bill argued argued that, that, while while repealing repealing
message message to to society society and and encourage encourage behavioural behavioural change. change.
·that ·that repealing repealing section section 59 59 would would send send a a strong strong anti-violence anti-violence
are are unfounded unfounded
and and that that fears fears of of prosecution prosecution for for trivial trivial use use of of physical physical discipline discipline
· · that that is is was was not not the the intention intention of of the the bill bill to to criminalise criminalise parents parents
and and problems problems developmental
· · that that physical physical discipline discipline is is linked linked with with longer-term longer-term psychological psychological
children children than than adults adults
· · that that section section 59 59 provides provides less less protection protection against against assault assault for for
children children and and child child abuse abuse
· · that that there there is is a a connection connection between between the the physical physical disciplining disciplining of of
with with other other forms forms of of discipline discipline
· · that that physical physical discipline discipline on on children children is is ineffective ineffective compared compared
Submitters Submitters who who supported supported the the bill bill raised raised the the following following arguments: arguments:
Support Support for for the the bill bill
parents, parents, children, children, and and society society if if section section 59 59 were were repealed. repealed.
A A number number of of submitters submitters predicted predicted various various detrimental detrimental effects effects on on
children children according according to to specific specific belief belief systems. systems.
· · that that the the repeal repeal of of section section 59 59 would would remove remove the the right right to to discipline discipline
raised raised poorly poorly with with no no conception conception of of discipline discipline or or boundaries boundaries
· · that that the the repeal repeal of of section section 59 59 would would lead lead to to children children being being
141 141
Solicitor-General's Solicitor-General's Prosecution Prosecution Guidelines. Guidelines. The The guidelines guidelines state state
We We were were advised advised that that all all decisions decisions prosecution are are guided guided by by the the
remain remain possibility. possibility. a
will will be be a a matter matter for for police police discretion, discretion, although although private private prosecutions prosecutions
parent parent for for the the use use of of force force against against children children for for the the purpose purpose of of correction correction
offence, offence, the the prosecution prosecution of of parents parents and and every every person person in in the the place place of of a a
the the reporting reporting of of incidents incidents to to the the police). police). As As with with any any other other
well well as as the the public public to to response the the law law change change (regarding, (regarding, for for example, example,
against against their their children children will will depend depend on on police police practice practice in in such such cases, cases, as as
parents parents and and every every person person in in the the place place of of a a parent parent for for the the use use of of force force
We We were were advised advised that that any any impact impact the the on rate rate of of prosecution prosecution of of
Prosecution Prosecution practice practice under under the the new new section section 59 59
with the the with changes changes recommended to to section section 59. 59.
educational educational programmes programmes would would be be most most beneficial beneficial in in conjunction conjunction
that that the the extension extension of of the the SKIP SKIP programme programme and and similar similar parental parental
groups, groups, and and educational educational groups groups throughout throughout the the country. country. We We consider consider
programme programme has has been been adopted adopted by by thousands thousands of of parents, parents, community community
with with Kids-Information Kids-Information for for Parents Parents (SKIP) (SKIP) programme. programme. This This
physical physical discipline. discipline. We We received received positive positive feedback feedback about about the the Strategies Strategies
effect effect of of the the recommended recommended changes changes to to section section 59 59 and and alternatives alternatives to to
should should conduct conduct public public awareness awareness and and education education campaigns campaigns about about the the
We We recommend recommend that that if if the the bill bill is is enacted enacted the the appropriate appropriate agencies agencies
Public Public education education
and and would would prove prove unworkable unworkable in in terms terms of of legal legal interpretation. interpretation.
were were fraught fraught with with difficulties difficulties both both in in practice practice and and in in principle, principle,
We We were were advised advised most most that of of the the amendments amendments proposed proposed by by submitters submitters
the the use use of of force force against against children. children.
· · Such Such amendment amendment could could be be seen seen as as sanctioning sanctioning or or legitimising legitimising
use use of of physical physical force force against against children. children.
· · Health Health professionals professionals are are averse averse to to providing providing guidelines guidelines on on the the
here. here.
would would be be out out of of line line with with the the rest rest of of statute statute law law to to define define it it
· · ''Reasonable ''Reasonable force'' force'' is is not not defined defined anywhere anywhere in in statute, statute, so so it it
interpretation interpretation and and argument. argument.
and and ''harm'' ''harm'' are are used, used, which which are are relative relative or or open open to to
individual individual cases, cases, particularly particularly if if terms terms such such as as "minor", "minor", "trivial", "trivial",
· · Difficulties Difficulties are are likely likely to to arise arise in in applying applying any any definition definition in in
done). done).
visible visible injury injury may may not not necessarily necessarily mean mean no no harm harm has has been been
142 142
ensure ensure a a child's child's or or young young person's person's safety safety would would remain. remain. Child, Child,
intervention intervention in in family family life life should should be be the the minimum minimum necessary necessary to to
a a greater greater volume volume of of reports, reports, but but that that the the legislative legislative principle principle that that
were were repealed, repealed, Child, Child, Youth Youth and and Family Family told told us us that that it it would would expect expect
children children to to remain remain the the same same if if section section 59 59 repealed. repealed. were section section If If 59 59
told told us us It It that that it it would would expect expect the the thresholds thresholds at at which which it it removes removes
has has various various policies policies for for dealing dealing with with situations situations that that endanger endanger children. children.
The The Department Department of of Child, Child, Youth Youth and and Family Family Services Services told told us us that that it it
Services Services
Advice Advice from from the the Department Department of of Child, Child, Youth Youth and and Family Family
Services Services or or Legal Legal Services. Services.
receive receive from from a a supervisor supervisor or or other other person person such such as as Police Police Prosecution Prosecution
investigating investigating officer, officer, after after considering considering any any advice advice that that they they may may
The The police police advised advised us us that that the the discretion discretion to to lay lay charges charges lies lies with with the the
bring bring trifling trifling matters matters before before the the court. court.
abuse abuse of of the the court's court's processes. processes. We We would would not not expect expect prosecutors prosecutors to to
abuse abuse of of the the court's court's processes. processes. Vexatious Vexatious or or trifling trifling matters matters are are an an
Judges Judges have have an an inherent inherent power power to to control control proceedings proceedings that that are are an an
public public interest interest and and there there is is sufficient sufficient evidence. evidence.
Guidelines, Guidelines, should should prosecution a proceed proceed only only where where it it is is in in the the
warnings warnings and and cautions. cautions. Under Under the the Solicitor-General's Solicitor-General's Prosecution Prosecution
other other than than formal formal prosecution prosecution are are available available to to police, police, including including
prosecuted prosecuted for for minor minor acts acts of of physical physical punishment. punishment. Various Various options options
likelihood likelihood of of parents parents and and every every person person in in the the place place of of parent parent a being being
There There are are safeguards safeguards in in the the criminal criminal justice justice system system to to minimise minimise the the
will will require require prosecution prosecution or or other other action. action.
make make inquiries inquiries about) about) reports reports of of alleged alleged assault, assault, not not all all such such cases cases
adult adult concerned concerned and and witnesses. witnesses. While While police police may may investigate investigate (or (or
significant significant investigation, investigation, other other than, than, for for example, example, follow-up follow-up with with the the
any any reports reports they they receive, receive, but but such such reports reports may may not not require require
the the use use of of force force against against children. children. The The police police are are obliged obliged to to investigate investigate
We We were were advised advised the the that police police will will not not actively actively solicit solicit reports reports of of
would would continue continue to to limit limit prosecutions prosecutions following following repeal. repeal.
unrelated unrelated to to section section 59, 59, such such as as failures failures to to detect detect or or report report assaults, assaults,
one one obstacle obstacle to to prosecutions prosecutions of of assaults assaults against against children. children. Factors, Factors,
section section 59 59 would would remove remove the the "correction" "correction" justification, justification, which which was was
whether whether to to prosecute. prosecute. Therefore, Therefore, the the recommended recommended changes changes to to
in in a a particular particular case case is is therefore therefore a a relevant relevant factor factor in in a a decision decision
result result in in a a conviction. conviction. The The likely likely success success of of section section 59 59 as as a a defence defence
be be in in the the public public interest interest unless unless it it is is more more likely likely than than not not that that it it will will
public public interest. interest. They They also also state state that that ordinarily ordinarily a a prosecution prosecution will will not not
that that police police must must decide decide whether whether a a prosecution prosecution is is required required in in the the
143 143
New New Zealand Zealand National National minority minority view view
respect respect of of the the petition. petition.
bill. bill. We We have have no no matters matters to to bring bring to to the the attention attention of of the the House House in in
We We considered considered the the issues issues raised raised this this by petition, petition, which which supports supports the the
2005/25 2005/25 Petition Petition of of Barry Barry Thomas Thomas and and 20,750 20,750 others others
of of children children from from their their families families for for the the use use of of minor minor physical physical discipline. discipline.
of of the the Act Act will will lead lead to to a a large large increase increase in in convictions convictions or or the the removal removal
We We do do not not believe believe the the that changes changes we we have have proposed proposed to to section section 59 59
the the changes changes to to section section 59. 59.
similar similar approach approach to to parents parents who who use use minor minor physical physical discipline discipline following following
for for this. this. We We consider consider that that logic logic dictates dictates the the police police will will adopt adopt a a
Crimes Crimes Act. Act. However, However, the the police police are are not not regularly regularly prosecuting prosecuting parents parents
this this technically technically constitutes constitutes kidnapping kidnapping under under section section 209 209 of of the the
example example is is if if a a caregiver caregiver sends sends a a child child to to its its room room against against its its will, will,
related related to to the the care care of of children children are are that rarely rarely prosecuted. prosecuted. Such Such an an
correction. correction. We We note note that that there there are are several several potential potential offences offences directly directly
reasonable reasonable force force in in some some circumstances, circumstances, but but not not for for the the purpose purpose of of
amendments amendments to to the the bill bill to to clarify clarify that that parents parents may may use use
Zealand. Zealand. Nevertheless, Nevertheless, for for the the sake sake of of clarity, clarity, we we have have recommended recommended
large large numbers numbers of of parents parents and and persons persons in in the the place place of of parents parents in in New New
consider consider the the that repeal repeal of of section section 59 59 will will lead lead to to the the prosecution prosecution of of
purpose purpose and and possible possible results results of of the the bill bill as as introduced. introduced. We We do do not not
We We consider consider that that there there is is widespread widespread misunderstanding misunderstanding about about the the
often often strong strong expressed views views the the on matter. matter.
received received from from a a variety variety wide of of individuals individuals and and organisations, organisations, and and
the the use use of of physical physical discipline discipline in in New New Zealand. Zealand. Submissions Submissions were were
The The submissions submissions we we received received demonstrated demonstrated a a range range of of views views about about
stimulated stimulated by by the the possible possible repeal repeal of of section section 59 59 of of the the Crimes Crimes Act. Act.
While While considering considering this this bill bill we we noted noted the the high high level level of of public public interest interest
Conclusion Conclusion
relationship. relationship.
guidelines guidelines and and protocols protocols and and to to maintain maintain a a close close working working
police police and and Child, Child, and and Youth Family Family to to develop develop effective effective operational operational
regarding regarding physical physical force force used used against against children. children. We We expect expect the the
to to maintain maintain their their professional professional discretion discretion when when dealing dealing with with complaints complaints
We We that that acknowledge the the police police and and Child, Child, Youth Youth and and Family Family need need
the the police. police.
guidelines guidelines in in conjunction conjunction with with all all affected affected agencies, agencies, especially especially
that that if if section section 59 59 repealed repealed were it it would would look look at at developing developing operational operational
consider consider removing removing children children only only if if they they are are at at serious serious risk. risk. told told us us It It
and and Youth Family Family is is concerned concerned with with abuse abuse child and and neglect neglect but but will will
144 144
section section 59 59 but but retention retention of of some some protection protection for for parents parents by by way way of of
the the fundamental fundamental rules rules of of law law are are certainty certainty and and clarity. clarity. The The repeal repeal of of
The The New New Zealand Zealand National National members members of of the the committee committee believe believe that that
majority majority of of New New Zealand Zealand parents. parents.
approach approach fails fails to to accurately accurately reflect reflect current current thinking thinking of of the the vast vast
The The New New Zealand Zealand National National members members believe believe that that this this "all "all or or nothing" nothing"
submitters submitters would would consider consider any any other other option option than than full full repeal. repeal.
repeal. repeal. The The National National Party Party members members were were disappointed disappointed that that few few
protection protection for for children children while while not not achieving achieving their their first first choice choice of of full full
which which would would operate operate as as a a ''fall-back'' ''fall-back'' position position to to offer offer better better
suggest suggest compromise compromise positions positions that that could could be be included included in in an an amendment, amendment,
suggested suggested amendment. amendment. Submitters Submitters were were also also asked asked to to discuss discuss and and
told told that that a a win win all/lose all/lose all all scenario scenario would would occur occur if if there there was was no no
In In the the course course of of hearing hearing submitters, submitters, those those in in favour favour of of repeal repeal were were
described described as as "the "the bash" bash" by by the the child, child, and and "abuse" "abuse" byothers. byothers.
an an acceptable acceptable ''smack'' ''smack'' to to one one parent parent is is not not to to another another and and can can be be
defined defined and and has has various various meanings meanings to to various various people. people. What What may may seem seem
abuse''. abuse''. The The difficulty difficulty also also remains remains that that ''smacking'' ''smacking'' itself itself is is ill ill
who who do do not not place place "smacking" "smacking" in in the the same same category category as as "child "child
New New Zealand Zealand National National members members agree agree with with most most New New Zealanders Zealanders
of of force force by by way way of of ''smacking'', ''smacking'', through through to to child child homicide. homicide. The The
researchers researchers place place child child abuse abuse on on a a continuum continuum from from the the least least application application
are are not not readily readily available available .. .. There There is is a a blurring blurring of of the the lines lines as as many many
Firm Firm statistics statistics as as to to the the use use of of corporal corporal punishment punishment in in New New Zealand Zealand
( ( criminalised) criminalised) for for smacking smacking their their children. children.
agree agree that that parents parents should should not not be be rendered rendered liable liable to to prosecution prosecution
New New Zealanders Zealanders believe, believe, and and the the New New Zealand Zealand National National members members
children children in in this this country country is is the the often-confirmed often-confirmed position position that that 80% 80% of of
Alongside Alongside the the need need for for lowering lowering the the threshold threshold of of violence violence against against
59 59 by by Judges. Judges.
There There is is less less concern concern about about interpretation interpretation of of the the language language of of section section
jury jury trials. trials.
the the "reasonable "reasonable correction" correction" justification justification offered offered by by section section 59 59 in in
convictions convictions have have resulted resulted when when the the accused accused have have successfully successfully used used
implements implements are are seen seen as as obvious obvious examples examples of of abuse, abuse, child yet yet no no
Some Some high-profile high-profile recent recent cases cases involving involving severe severe beatings beatings with with
their their abused children. children.
conviction conviction by by some some parents parents and and guardians guardians who who have have obviously obviously
section section 59 59 of of the the Crimes Crimes Act Act 1961 1961 as as it it is is being being used used as as a a shield shield to to
of of the the committee committee believe believe it it is is imperative imperative to to lower lower the the usage usage of of
In In the the best best interests interests of of children, children, the the New New Zealand Zealand National National members members
145 145
Key Key to to symbols symbols used used in in reprinted reprinted bill bill
Nicky Nicky Wagner Wagner
Sue Sue Bradford Bradford replacing replacing N'andor N'andor T'anczos T'anczos
AnnHartley AnnHartley
Chester Chester Borrows Borrows replacing replacing Christopher Christopher Finlayson Finlayson
Lynne Lynne Pillay Pillay (Chairperson) (Chairperson)
Subcommittee Subcommittee membership membership
this this bill. bill.
The The committee committee appointed appointed a a subcommittee subcommittee for for the the consideration consideration of of
this this item item of of business. business.
Chester Chester Borrows Borrows and and Sue Sue Bradford Bradford were were replacement replacement members members for for
Dr Dr Richard Richard Worth Worth
Nicky Nicky Wagner Wagner
N'andor N'andor T'anczos T'anczos
Ann Ann Hartley Hartley
Russell Russell Fairbrother Fairbrother
Christopher Christopher Finlayson Finlayson (Deputy (Deputy Chairperson) Chairperson)
Lynne Lynne Pillay Pillay (Chairperson) (Chairperson)
Committee Committee membership membership
advice advice from from the the Law Law Commission. Commission.
of of Child, Child, Youth Youth and and Family Family Services. Services. We We sought sought additional additional
of of Social Social Development, Development, the the New New Zealand Zealand Police, Police, and and the the Department Department
We We received received advice advice from from the the Ministry Ministry of of Justice, Justice, the the Ministry Ministry
and and held held hearings hearings in in Wellington, Wellington, Auckland, Auckland, Hamilton, Hamilton, and and Christchurch. Christchurch.
from from interested interested groups groups and and individuals. individuals. We We heard heard 207 207 submissions submissions
28 28 February February 2006. 2006. We We received received and and considered considered 1,718 1,718 submissions submissions
Committee Committee on on 27 27 July July 2005. 2005. The The closing closing date date for for submissions submissions was was
Amendment Amendment Bill Bill was was referred referred to to the the Justice Justice and and Electoral Electoral
The The Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline)
Committee Committee process process
Appendix Appendix
laws laws that that work. work.
child child assaults assaults in in New New Zealand Zealand and and that that Parliament Parliament should should only only enact enact
there there needs needs to to be be a a common-sense common-sense approach approach to to the the issues issues around around
The The New New Zealand Zealand National National members members of of the the committee committee believe believe that that
(c) (c) to to prevent prevent good good parents parents from from being being criminalised; criminalised; are are achieved. achieved.
wrong; wrong; (b) (b) to to prevent prevent child child abusers abusers from from hiding hiding behind behind section section 59; 59;
both both sides sides of of the the debate debate (a) (a) to to send send a a message message that that abuse abuse child is is
amendments amendments to to the the bill bill to to ensure ensure the the three three common common objectives objectives of of
The The New New Zealand Zealand National National members members of of the the committee committee intend intend offering offering
precise precise for for parents parents to to have have confidence confidence that that they they live live within the the within law. law.
guidelines guidelines for for practise practise or or commentary commentary this this on bill bill insufficiently insufficiently are
146 146
for for Child Child Discipline) Discipline) Substituted Substituted 59) 59) Section Amendment Amendment Act Act
This This Act Act is is the the Crimes Crimes ((Abolition ((Abolition of of Force Force as as a a Justification Justification
1 1 1fitle 1fitle
The The Parliament Parliament of of New New Zealand Zealand enacts enacts as as follows: follows:
5 5 Amendments Amendments to to Education Education Act Act 1989 1989 2 2
59 59 Parental Parental control control 2 2
New New 4 4 section section 59 59 substituted substituted 2 2
3 3 Purpose Purpose 1 1
2 2 A A Principal Principal Act Act amended amended 1 1
2 2 Commencement Commencement 1 1
1 1 Title Title 1 1
Page Page
Contents Contents
Member's Member's Bill Bill
Amendment Amendment Bill Bill
for for Child Child Discipline Discipline )Substituted )Substituted Section Section 59) 59)
Crimes Crimes ((Abolition ((Abolition of of Force Force as as a a Justification Justification
Sue Sue Bradford Bradford
Subject Subject to to this this Act, Act, Words Words inserted inserted unanimously unanimously
(Subject (Subject to to this this Act,) Act,) Words Words struck struck out out unanimously unanimously
Subject Subject to to this this Act, Act, Text Text inserted inserted by by a a majority majority
New New (majority) (majority)
Subject Subject to to this this Act, Act, Text Text struck struck out out unanimously unanimously
Struck Struck out out (unanimous) (unanimous)
Subject Subject to to this this Act, Act, Text Text struck struck out out by by a a majority majority
Struck Struck out out (majority) (majority)
As As reported reported from from a a select select committee committee
147 147
(1) (1) Section Section 139A(1) 139A(1) and and (2) (2) of of the the Education Education Act Act 1989 1989
(1AA) (1AA) This This section section amends amends the the Education Education Act Act 1989. 1989.
New New (majority) (majority)
5 5
"(3) "(3) Subsection Subsection (2) (2) prevails prevails over over subsection subsection (1)." (1)."
the the use use of of force force for for the the purpose purpose of of correction. correction.
"(2) "(2) Nothing Nothing in in subsection subsection or or in in rule rule any (1) (1) of of common common law law justifies justifies
good good care care and and parenting. parenting.
"(d) "(d) performing performing the the normal normal daily daily tasks tasks that that are are incidental incidental to to
engage engage in in offensive offensive or or disruptive disruptive behaviour; behaviour; or or
"(c) "(c) preventing preventing the the child child from from engaging engaging or or continuing continuing to to
in in engage conduct conduct that that amounts amounts to to a a criminal criminal offence; offence; or or
''(b) ''(b) preventing preventing child child the from from engaging engaging or or continuing continuing to to
person; person; or or
"(a) "(a) preventing preventing or or minimising minimising harm harm to to the the child child or or another another
reasonable reasonable in in the the circumstances circumstances and and is is for for the the purpose purpose of
parent parent of of the the child child is is justified justified in in using using force force if if the the force force used used is is
Every Every parent parent "(1) "(1) of of a a child child and and every every person person in in the the place place of of a a
''59 ''59 Parental Parental control control
Section Section 59 59 is is repealed repealed and and the the following following section section substituted: substituted:
4 4 New New section section 59 59 substituted substituted
New New (majority) (majority)
Section Section 59 59 is is repealed. repealed.
4 4 Domestic Domestic discipline discipline
Struck Struck out out (unanimous) (unanimous)
pose pose of of correction>. correction>.
violence violence by by abolishing abolishing the the use use of of parental parental force force for for the the pur-
children children to to live live in in a a safe safe and and secure secure environment environment from from free
for for disciplining disciplining children> children> The The purpose purpose of of this this Act Act is is to to amend amend the the principal principal Act Act to to 3 3 Purpose Purpose This This Act Act amends amends the the Crimes Crimes Act Act 1961. 1961. 2A. 2A. Principal Principal Act Act amended amended receives receives the the Royal Royal assent. assent. This This Act Act comes comes into into force force on on the the day day after after the the date date on on which which it it 2 2 Commencement Commencement 2005. 2005. 148 148 Committee Committee July July 2005 2005 First First reading reading and and referral referral to to Justice Justice and and Electoral Electoral June June 2005 2005 Introduction Introduction (271-1) (271-1) Legislative Legislative history history student student or or child''. child''. omitting the the omitting words words '', '', unless unless that that person person is is guardian guardian a of of the the (2) (2) Section Section 139A(2) 139A(2) of of the the Education Education Act Act 1989 1989 is is amended amended Struck Struck out out (majority) (majority) is is a a guardian guardian of of the the student student or or child''. child''. are are amended amended by by omitting omitting the the words words '', '', unless unless that that person person 149 149 (3) (3) Subsection Subsection (2) (2) prevails prevails over over subsection subsection (1). (1). purpose purpose of of correction. correction. (2) (2) Nothing Nothing in in subsection subsection (1) (1) or or in in any any rule rule of of common common law law justifies justifies the the use use of of force force for for the the (d) (d) performing performing the the normal normal daily daily tasks tasks that that are are incidental incidental to to good good care care and and parenting. parenting. behaviour; behaviour; or or (c) (c) preventing preventing the the child child from from engaging engaging or or to to continuing engage engage in in offensive offensive or or disruptive disruptive criminal criminal offence; offence; or or (b) (b) preventing preventing the the child child from from engaging engaging or or to to continuing engage engage in in conduct conduct that that amounts amounts to to a a (a) (a) preventing preventing or or minimising minimising harm harm to to the the child child or or another another person; person; or or in in using using force force if if the the force force used used is is reasonable reasonable in in the the circumstances circumstances and and is is for for the the purpose purpose of of - " " ( ( 1) 1) Every Every parent parent of of a a child child and and every every person person in in the the place place of of a a parent parent of of the the child child is is justified justified Section Section 59 59 states: states: New New Section Section 59 59 ordinator ordinator or or Legal Legal Services. Services. they they should should consult consult Prosecution Prosecution Services, Services, a a Child Child Abuse Abuse Investigator, Investigator, a a Violence Violence Family Co If If staff staff require require any any advice advice about about the the application application of of section section 59 59 to to any any particular particular circumstances, circumstances, it it will will be be interpreted interpreted and and applied applied by by the the Courts. Courts. guidance guidance on on the the application application of of it. it. Until Until case case law law develops develops on on the the section, section, it it is is not not known known how how The The purpose purpose of of this this practice practice guide guide is is to to advise advise staff staff about about the the new new section section and and to to give give of of correction. correction. secure secure environment environment free free from from violence violence by by abolishing abolishing the the use use of of parental parental force force for for the the purpose purpose Act Act is is to to amend amend the the Crimes Crimes Act Act to to make make better better provision provision for for children children to to live live in in a a safe safe and and child, child, if if the the force force used used was was reasonable reasonable in in the the circumstances. circumstances. The The purpose purpose of of the the Amendment Amendment every every person person in in place place of of the the parent parent of of a a child child to to use use force force by by way way of of correction correction towards towards the the Section Section 59 59 of of the the Crimes Crimes Act Act provided provided a a statutory statutory defence defence for for every every parent parent of of a a child child and and on on 22 22 June June 2007 2007 and and amends amends section section 59 59 of of the the Crimes Crimes Act. Act. The The Crimes Crimes (Substituted (Substituted Section Section 59) 59) Amendment Amendment Act Act ("Amendment ("Amendment Act") Act") comes comes into into force force Introduction Introduction Appendix Appendix 3: 3: Police Police Practice Practice Guide Guide 150 150 for for the the purposes purposes of of correction. correction. made made clear clear in in the the new new subsections subsections (2) (2) and and (3)- nothing nothing ins ins 59(1) 59(1) will will justify justify the the use use of of force force i.e. i.e. force force cannot cannot be be used used after after the the event event to to punish punish or or discipline discipline the the child. child. This This distinction distinction is is reasonable reasonable force can can force only only be be used used at at the the time time the the that intervention intervention the the by parent parent is is required required To To "prevent" "prevent" is is to to hinder hinder or or stop stop something something from from occurring. occurring. From From this this it it is is implicit implicit that that Preventing Preventing 59(1)(d)). 59(1)(d)). the the purposes purposes of of restraint restraint (s (s 59(1)(a) 59(1)(a) to to (c)) (c)) or, or, by by way way of of example, example, to to ensure ensure compliance compliance (s (s Any Any force force used used must must not not be be for for the the purposes purposes of of correction correction or or punishment; punishment; it it may may only only be be for for use use of of force. force. The The use use of of force force must must be be both both subjectively subjectively and and objectively objectively reasonable. reasonable. must must act act in in good good faith faith and and have have a a belief belief reasonable in in a a state state of of facts facts which which will will justify justify the the No No definitions definitions are are offered offered about about what what constitutes constitutes reasonable reasonable force. force. In In using using force force parents parents Force Force used used is is reasonable reasonable in in the the circumstances circumstances parents, parents, and and other other persons persons who who take take on on parental parental responsibility responsibility in in the the absence absence of of parent. parent. a "Person "Person in in the the place place of of parent" parent" a is is also also not not defined, defined, but but includes includes step step parents parents and and foster foster Person Person in in the the place place of of a a parent parent • • the the circumstances circumstances that that led led to to the the use use of of force. force. • • characteristics characteristics of of the the child, child, such such as as physical physical development, development, sex sex state state and of of health, health, and and • • ability ability of of the the child child to to reason reason • • maturity maturity of of the the child child • • age age of of the the child child to to be be considered considered in in determining determining whether whether the the force force used used is is justified justified under under section section 59 59 include: include: force force for for the the purposes purposes listed listed in in section section 59 59 will will become become less less justifiable. justifiable. Factors Factors that that will will need need Young Young Persons, Persons, and and Their Their Families Families Act Act 1989). 1989). As As children children get get older, older, the the use use of of reasonable reasonable of of Children Children Act Act 2004), 2004), or or perhaps, perhaps, under under 14 14 years years of of age age (as (as it it is is defined defined in in the the Children, Children, clear clear whether whether it it includes includes those those persons persons 17 17 years years of of age age and and under under (as (as it it is is defined defined in in the the Care Care "Child" "Child" is is not not defined defined for for the the purpose purpose of of section section 59. 59. Because Because "child" "child" is is not not defined, defined, it it is is not not Child Child Analysis Analysis of of the the new new section section so so inconsequential inconsequential that that there there is is no no public public interest interest in in proceeding proceeding with with a a prosecution." prosecution." to to an an offence offence involving involving the the use use of of force force against against a a child, child, where where the the offence offence is is considered considered to to be be complaints complaints against against a a parent parent of of a a child child or or person person in in the the place place of of parent parent a of of a a child child in in relation relation ( ( 4) 4) To To avoid avoid doubt, doubt, it it is is affirmed affirmed that that the the Police Police have have the the discretion discretion not not to to prosecute prosecute 151 151 "1. "1. Causing Causing or or tending tending to to disruption disruption ...... " " The The Shorter Shorter Oxford Oxford English English Dictionary Dictionary defines defines "disruptive"'as: "disruptive"'as: 3. 3. Giving, Giving, or or of of a a nature nature to to give, give, offence; offence; displeasing; displeasing; annoying; annoying; insulting insulting ...... " " 2. 2. Hurtful, Hurtful, injurious injurious ...... Pertaining Pertaining or or tending tending to to "1. "1. attack; attack; aggressive; aggressive; ...... The The Shorter Shorter Oxford Oxford English English Dictionary Dictionary defines defines "offensive" "offensive" as: as: resentment resentment or or disgust disgust or or outrage outrage in in the the mind mind of of a a person." person." reasonable "[The "[The behaviour] behaviour] must must be be such such as as is is calculated calculated to to wound wound the the feelings, feelings, arouse arouse anger anger or or description description of of "offensive "offensive behaviour": behaviour": In In Ceramalus Ceramalus v v Police Police (1991) (1991) 7 7 CRNZ CRNZ 678 678 Tomkins Tomkins adopted adopted the the following following as as a a helpful helpful J J that that warrant warrant the the interference interference of of the the criminal criminal law. law. insight, insight, the the analysis analysis provided provided by by the the Courts Courts is is more more particularly particularly targeted targeted at at types types of of behaviour behaviour the the boundaries boundaries lie lie in in the the context context of of this this subsection. subsection. While While current current case case law law can can offer offer some some or or Offensive disruptive disruptive behaviour behaviour is is not not defined defined in in the the Crimes Crimes Act Act and and it it is is not not known known where where behaviour behaviour Preventing Preventing the the child child from from engaging engaging or or continuing continuing to to engage engage in in offensive offensive or or disruptive disruptive themselves themselves (Note: (Note: the the defence defence of of self self defence defence could could equally equally apply apply in in such such cases). cases). child, child, by by way way of of example, example, from from damaging damaging or or stealing stealing property, property, or or assaulting assaulting other other people or or people every every person person in in the the place place of of parent parent a of of the the child child can can use use reasonable reasonable force force to to prevent prevent their their commit commit an an offence offence e.g. e.g. theft, theft, wilful wilful damage damage or or assault. assault. Therefore, Therefore, parent parent a of of a a and and child (section (section 272 272 Children, Children, Young Young Persons Persons and and Their Their Families Families Act Act 1989), 1989), a a child child of of any any age age can can Act Act 1961), 1961), and and a a child child aged aged 10 10 to to 13 13 can can only only be be charged charged with with murder murder or or manslaughter manslaughter offences. offences. a a Although child child under under 10 10 cannot cannot be be convicted convicted of of an an offence offence (section (section 21 21 Crimes Crimes This This subsection subsection authorises authorises the the use use of of reasonable reasonable force force to to prevent prevent children children from from committing committing a a criminal criminal offence offence Preventing Preventing the the child child from from engaging engaging or or continuing continuing to to engage engage in in conduct conduct that that amounts amounts to to • • striking striking another another child child or or person person with with an an object. object. • • inserting inserting a a metal metal object object into into a a power power point point • • touching touching a a hot hot stove stove • • running running across across a a busy busy road road or or another another person. person. For For example, example, to to stop stop a a child child from: from: This This subsection subsection allows allows reasonable reasonable force force to to be be used used to to prevent prevent or or minimise minimise harm harm to to the the child child Preventing Preventing or or minimising minimising harm harm to to the the child child or or another another person person 152 152 interventions interventions or or warnings warnings to to the the offender offender have have not not stopped stopped such such actions. actions. prosecution prosecution may may be be warranted warranted if if such such actions actions are are repetitive repetitive or or frequent, frequent, and and other other In In addition, addition, while while smacking smacking may, may, in in some some circumstances, circumstances, be be considered considered inconsequential, inconsequential, a a need need to to be be considered, considered, such such assaults assaults will will generally generally require require prosecution prosecution a in in the the public public interest. interest. not not be be inconsequential inconsequential assaults. assaults. While While all all mitigating mitigating and and aggravating aggravating circumstances circumstances would would The The use use of of objects/weapons objects/weapons to to smack smack a a child, child, strikes strikes around around the the head head area area or or kicking kicking would would "Unimportant" "Unimportant" And And the the Concise Concise Oxford Oxford Dictionary Dictionary defines defines the the word word "inconsequential" "inconsequential" as: as: "Of "Of no no consequence" consequence" The The Shorter Shorter Oxford Oxford English English Dictionary Dictionary defines defines the the word word "inconsequent" "inconsequent" as: as: conduct conduct really really warrants warrants the the intervention intervention of of the the criminal criminal law." law." "the "the seriousness seriousness or, or, conversely, conversely, the the triviality triviality of of the the alleged alleged offence; offence; that that is, is, whether whether the the whether whether the the public public interest interest requires requires prosecution prosecution a includes: includes: Crown Crown Solicitors Solicitors also also states states that that a a factor factor that that may may arise arise for for consideration consideration in in determining determining there there is is no no public public interest interest in in a a prosecution. prosecution. The The Crown Crown Law Law Office Office Prosecution Prosecution Guidelines Guidelines for for have have discretion discretion not not to to prosecute prosecute where where the the offence offence is is considered considered to to be be so so inconsequential inconsequential that that Parliament Parliament has has expressly expressly affirmed affirmed that that for for minor minor cases cases of of assault assault against against children, children, Police Police Inconsequential Inconsequential offences offences where where there there is is no no public public interest interest in in prosecuting prosecuting unreasonable unreasonable in in the the circumstances, circumstances, this this subsection subsection will will not not provide provide a a defence defence to to such such action. action. (c)) (c)) or or to to restore restore calm. calm. However, However, if if the the child child is is detained detained for for period period a or or in in a a manner manner that that is is subsection subsection i.e. i.e. to to prevent prevent the the child child from from continuing continuing to to engage engage in in the the behaviour behaviour (s (s 59(1)(b) 59(1)(b) or or task task and and the the use use of of reasonable reasonable force force in in such such circumstances circumstances may may be be justified justified under under this this child's child's will will at at the the time time the the intervention intervention is is required. required. Force Force may may be be required required to to perform perform such such a a Also, Also, parent parent a may may send send or or take take their their child child to, to, by by way way of of example, example, their their room room against against the the subsection. subsection. sunscreen. sunscreen. The The use use of of reasonable reasonable force force in in performing performing such such tasks tasks is is permitted permitted under under this this example, example, when when changing changing nappies, nappies, dressing dressing or or securing securing a a child child in in a a car car seat, seat, or or applying applying Many Many everyday everyday tasks tasks require require parents parents to to use use force force when when interacting interacting with with their their children. children. For For Performing Performing the the normal normal daily daily tasks tasks that that are are incidental incidental to to good good care care and and parenting parenting throwing throwing objects objects or or food. food. the the upon specific specific circumstances, circumstances, could could include, include, by by way way of of example, example, yelling yelling and and screaming screaming or or Examples Examples of of behaviour behaviour may may that amount amount to to offensive offensive or or disruptive disruptive behaviour, behaviour, depending depending 153 153 Rights Rights Act. Act. Discretion Discretion must must be be used used by by staff. staff. discretion discretion to to arrest arrest was was unlawful unlawful and and arbitrary arbitrary under under section section 22 22 of of the the New New Zealand Zealand Bill Bill of of circumstances circumstances was was not not lawful. lawful. The The High High Court Court also also held held that that a a failure failure to to consider consider the the adopting adopting policy policy a to to automatically automatically arrest arrest a a suspect suspect without without allowing allowing for for exceptional exceptional In In Attorney-General Attorney-General v v Hewitt Hewitt [2000] [2000] NZAR NZAR 148 148 a a full full bench bench of of the the Court Court High held held that that Policy. Policy. Staff Staff must must apply apply their their common-sense. common-sense. justify justify a a departure departure from from the the requirements requirements of of paragraph paragraph 19 19 of of the the Police Police Family Family Violence Violence interests interests of of the the child/family child/family and and the the public public to to prosecute prosecute i.e. i.e. "exceptional "exceptional circumstances" circumstances" will will • • depending depending upon upon the the amount amount of of force force used, used, take take into into account account whether whether it it is is in in the the best best may may be be investigated investigated further further • • where where and and when when possible, possible, refer refer appropriate appropriate cases cases to to Child Child Abuse Abuse Investigators Investigators where where they they been been committed committed • • establish establish whether whether there there is is sufficient sufficient admissible admissible and and reliable reliable evidence evidence that that an an offence offence has has interest. interest. In In such such cases cases Police Police need need to: to: things, things, before before making making a a decision decision about about whether whether prosecution prosecution a is is required required in in the the public public investigations, investigations, must must consider consider the the amount amount of of force force used used in in the the circumstances, circumstances, among among other other Police Police investigating investigating cases cases where where force force is is used used against against a a child, child, as as is is the the case case with with all all assault assault circumstances. circumstances. good good defence defence and and if if it it does does not, not, arrest arrest the the alleged alleged offender offender unless unless there there are are exceptional exceptional dealt dealt with with promptly, promptly, Police Police Officers Officers will will need need to to determine determine whether whether section section 59 59 provides provides a a Where Where an an assault assault on on a a child child is is witnessed witnessed by by Police Police or or where where a a report report of of an an assault assault needs needs to to be be Child Child Abuse Abuse Investigators, Investigators, and and investigated investigated in in conjunction conjunction with with Child, Child, Youth Youth and and Family. Family. It It is is considered considered good good practice practice that that investigations investigations assault involving involving children children be be referred referred to to Violence Violence Policy. Policy. Force Force used used on on children children that that is is not not permissible permissible under under section section 59 59 is is covered covered by by the the Family Family is is contemplated, contemplated, the the member's member's supervisor supervisor must must be be consulted." consulted." except except in in exceptional exceptional circumstances, circumstances, be be arrested. arrested. In In rare rare cases cases where where action action other other than than arrest arrest "Given "Given sufficient sufficient evidence, evidence, offenders offenders who who are are responsible responsible for for family family violence violence offences offences shall, shall, Paragraph Paragraph 19 19 of of the the Police Police Family Family Violence Violence Policy Policy states: states: in in relationships. relationships. people people as as parents, parents, children, children, extended extended family family members members and and whanau, whanau, or or other other people people involved involved sexual sexual abuse, abuse, and and includes includes intimidation intimidation or or threats threats of of violence. violence. The The term term 'family' 'family' includes includes such such term term 'family 'family violence' violence' includes includes violence violence which which is is physical, physical, emotional, emotional, psychological psychological and and practice practice when when members members of of Police Police deal deal with with family family violence violence within within their their community. community. The The The The Police Police Family Family Violence Violence Policy Policy outlines outlines the the principles, principles, policy policy and and procedures procedures for for best best Application Application of of the the Police Police Family Family Violence Violence Policy Policy (1996/2) (1996/2) 154 154 Copyright Copyright 2008 2008 New New Zealand Zealand Police Police Act Act (assault (assault on on a a child child under under 14 14 years years of of age) age) would would be be appropriate. appropriate. more is is not not overly overly serious. serious. For For more more serious serious cases, cases, the the offence offence against against section section 194(a) 194(a) of of the the Crimes Crimes would would be be assault assault pursuant pursuant to to section section 9 9 of of the the Summary Summary Offences Offences Act Act 1981 1981 where where the the offence offence interest interest to to prosecute prosecute (refer (refer to to the the above above guidance guidance and and commentary), commentary), the the appropriate appropriate charge charge justified justified under under section section 59, 59, and and there there are are no no exceptional exceptional circumstances circumstances and and it it is is in in the the public public If If a a parent parent of of a a child child or or a a person person in in the the place place of of parent parent a of of a a child child uses uses force force that that is is not not Appropriate Appropriate charging charging will will also also be be forwarded forwarded in in the the usual usual way way to to the the Family Family Violence Violence Co-ordinator. Co-ordinator. Youth Youth and and Family Family must must be be made made by by faxing faxing the the POL400 POL400 to to the the CYF CYF Call Call Centre. Centre. The The matter matter in in terms terms ofthe ofthe CAT/SAT CAT/SAT Protocol Protocol as as a a Care Care and and Protection Protection issue. issue. A A Notification Notification to to Child Child For For clear clear events events of of abuse abuse or or neglect, neglect, the the event event will will be be recorded recorded on on a a POL400 POL400 and and dealt dealt with with ordinator. ordinator. Centre. Centre. The The matter matter will will also also be be forwarded forwarded in in the the usual usual way way to to the the Family Family Violence Violence Co Youth Youth and and Family Family must must be be made made by by faxing faxing the the POL400 POL400 to to the the Child Child Youth Youth and and Family Family Call Call consideration consideration given given as as to to whether whether prosecution prosecution may may be be appropriate. appropriate. A A Notification Notification to to Child Child the the same same family family or or more more serious serious cases cases the the matter matter should should be be recorded recorded on on a a POL400 POL400 and and In In repeat repeat events events (where (where other other interventions interventions or or warnings warnings have have been been unsuccessful) unsuccessful) involving involving Violence Violence Co-ordinator. Co-ordinator. offering offering guidance guidance and and support, support, dependent dependent on on the the context context following following discussion discussion the the by Family Family ordinator. ordinator. The The expected expected outcome outcome for for such such events events will will be be one one using using common common sense sense and and of of appropriate appropriate to to record record the the event event on on a a POL400 POL400 and and forward forward the the file file to to the the Family Family Violence Violence Co In In cases cases where where the the force force used used is is found found to to be be minor, minor, trivial trivial or or inconsequential, inconsequential, it it will will be be Referrals Referrals and and documentation documentation 155 155 follow follow the the .if .if JJ.OOeSsaty JJ.OOeSsaty evid.ence evid.ence is is :available. :available. alcohol alcohol may may levels, levels, .ceqW:re .ceqW:re that that pt:oseeution pt:oseeution will will almost almost ~ly ~ly classes classes of of off"Eruliog,. off"Eruliog,. eg eg with with driVmg driVmg b:re:ath b:re:ath ~s ~s o.c o.c blood blood to to s.aid s.aid that that be be aho aho the the public public may may :inte.ces.t :inte.ces.t that that so.me so.me imiica.te imiica.te p.cobably p.cobably be be sm sm :6m1 :6m1 that that the the ~e~: ~e~: should should be be a a Ccmrt. Ccmrt. needs needs It It proceed proceed p.cosecut.ifm p.cosecut.ifm 'With 'With th-e th-e as, as, the the b.al.:anoe b.al.:anoe .if .if is is it it so so even, even, could could likely likely .cesuh. .cesuh. In In of of such such do* do* c~ c~ it it m:ay m:ay be be to to ;;tppfOp.ci&te ;;tppfOp.ci&te that that ~ ~ eitbe.c eitbe.c eomfictiofl. eomfictiofl. :a :a o.c o.c :aeqw1:till :aeqw1:till :an :an is is the the more more :and :and :in :in some some it it m:ay m:ay eases eases be be net net say say poss.ihle poss.ihle ;any ;any to to with with ~ ~ Cotlviction. Cotlviction. :assessment :assessment will.o.fte:n will.o.fte:n be be :a :a d:ifficult d:ifficult one one to to nuke nuke p:rooceed p:rooceed unless unless it it likely likely mrue mrue is is it it thJa thJa that that will. will. :result :result :a :a .:in .:in .IIJ.Ot .IIJ.Ot dut dut o.cd.Uurily o.cd.Uurily pOOli.c pOOli.c the the .ceqni:re .ceqni:re uriiJ. uriiJ. ~t ~t not not a a prosecution prosecution to to be be disposed disposed of of than than othet: othet: by by p.c~ p.c~ flctoi: flctoi: A A domio:aot domio:aot .is .is evidence evidence ro ro s:tlpport: s:tlpport: likely likely it, it, the the less less it it will will be be it it th;at th;at p~y p~y e;an e;an Genenll.y, Genenll.y, mme mme the the ease. ease. seri.ou.s seri.ou.s the the ~ ~ md md th.e th.e the the s.tt~ s.tt~ decisiotl decisiotl to to o.c o.c p~ p~ not, not, mfi:n:itely mfi:n:itely vuy vuy w.ill w.ill from from ease ease to to ami ami .cequit:es .cequit:es the the pmsecu.tio.t:l pmsecu.tio.t:l pi=oceed. pi=oceed. to to which which Facto.cs Facto.cs cm cm lea.d lea.d to to a a fo.c fo.c ~ ~ bislS bislS ·the ·the exists, exists, the the public public pi'OSeeuti.Ofl pi'OSeeuti.Ofl mte.re"St mte.re"St .ma;o.c .ma;o.c J J 3.3. 3.3. The The secCMJ.d secCMJ.d coruide.catian coruide.catian ~s ~s ~ ~ ~ ~ thzt thzt m m 'I'he 'I'he 3.3 3.3 !:merest !:merest POOlic POOlic tm tm 3.2 3.2 ocigmal. ocigmal. no no the the ~is ~is ~ph ~ph 3.2) 3.2) doOOt. doOOt. ;my ;my by by ~ ~ it it gWit: gWit: dii-ected dii-ected ;a ;a find find co-uld co-uld proved proved beyond beyond .ce~le .ce~le establish establish prima prima a a ficie ficie case; case; is, is, thit thit 1hat 1hat if if evidence evidence a-ccepted a-ccepted is is as as a:edible a:edible 'I'he 'I'he qu.estiCMJ. qu.estiCMJ. seeaOO. seeaOO. is is 'Wheth& 'Wheth& thit thit evidence evidence is is sttong sttong s1lfficiendy s1lfficiendy ro ro offe:nce offe:nce has has been been iden:rifu.bl.e iden:rifu.bl.e by by com:mitted com:mitted pe.cson. pe.cson. m m p.coseen:to.c p.coseen:to.c is is thit thit th&e th&e ~ ~ is is ulmissibJe ulmissibJe :reliAble :reliAble evidence evidence ~ ~ that that an an 'I'he 'I'he :alw-ays :alw-ays question question fu-st fu-st ro ro eom:ideoed eom:ideoed be be '!ll:ldei: '!ll:ldei: head head thi.s thi.s whethei: whethei: fi fi the the evidemhl evidemhl C1[)!l~ed; C1[)!l~ed; md md ~cy ~cy :inte£est. :inte£est. poolic poolic the the In In making making decisian decisian the the to to irutine irutine p:r.osecmia.n p:r.osecmia.n the~:e the~:e b.ctOG b.ctOG to to ~ ~ be be :am :am i i t'!.vo t'!.vo 3. 3. The The Decision Decision to to Pro5eCUte Pro5eCUte Selected Selected paragraphs paragraphs of of the the Solicitor Solicitor General's General's Prosecution Prosecution Guidelines, Guidelines, 1992 1992 Appendix Appendix 4 4 156 156 Court. Court. having having the the to to sentencing sentencing J:egli.Ed J:egli.Ed optiaill.S optiaill.S ~ble ~ble the the to to fp) fp) likely likely the the evem evem ~ ~ :imposed :imposed in in the the of of cOillcictioill. cOillcictioill. dl.e dl.e wh.~ wh.~ :aeeu.sed :aeeu.sed lus lus llie:ady llie:ady done done ~ ~ investig:a.tion investig:a.tion oc oc p.ro~ p.ro~ of of the the othe!:s othe!:s o.r o.r extent extent to to {o) {o) the the :a.oou.:sed :a.oou.:sed ~dl.e.z: ~dl.e.z: is is willing willing m m to to co-opeate co-opeate the the p.ros.ecu.ti.Ofl.; p.ros.ecu.ti.Ofl.; {m) {m) attitude attitude the the of of the the alleged alleged vi.>C"I:i!n vi.>C"I:i!n of of the the offet:J.ce offet:J.ce a a to to ofc~ ofc~ compeo:szrioill, compeo:szrioill, ~011. ~011. ~e ~e o.r o.r ~ce ~ce a a ll.S ll.S (l.) (l.) the the entitl.eme:o.t entitl.eme:o.t of of the the Crowill. Crowill. oc oc :my :my othe! othe! pe!SOfl. pe!SOfl. to to tmdnl.y tmdnl.y be be ~ ~ h:a!:-sh h:a!:-sh and and oppres~ oppres~ (k) (k) -whethex -whethex the the ;my ;my :t:erohing :t:erohing eo~ eo~ of of COfl.victioill. COfl.victioill. d~ d~ Offence Offence (j) (j) the the p:t:evalenee p:t:evalenee of of illeged illeged the the .00 .00 the the need need fuJ: fuJ: ~ ~ example example fof: fof: em.bliflg em.bliflg by by ;areu.sed ;areu.sed :m :m to to be be seen seen a a :a:s :a:s (h) (h) ~ ~ the the ~tion ~tion be be ~ ~ CO"J.:W.tei:-p~:~; CO"J.:W.tei:-p~:~; {g) {g) obsoleseen.ce obsoleseen.ce the the obscw:ity obscw:ity m: m: of of hw; hw; the the Clfml!OJl; Clfml!OJl; {f) {f) the the effect effect of of a a decision decision to to public public p!Osecllte p!Osecllte :1:110t :1:110t 011. 011. (e) (e) the~ the~ of of ~of ~of offende!; offende!; ~d ~d the the (d) (d) the the of of :alleged :alleged the the ~'5 ~'5 of.fianee~ of.fianee~ offende!; offende!; (c) (c) he he physic;al physic;al old old youth, youth, age, age, memal memal he;tltb he;tltb alleged alleged of of the the O:£ O:£ {b) {b) of of the the ~011. ~011. hw; hw; crimim.l crimim.l offence; offence; whetha whetha ie ie :t:eilly :t:eilly the the COfl.duct COfl.duct the the w-m:J1lit:s w-m:J1lit:s (a) (a) the the ser.iou.saess ser.iou.saess or., or., con~, con~, the the alleged alleged triv~ triv~ of of the the -wiJ.ethe!: -wiJ.ethe!: the the public public mt&es£ mt&es£ ~es ~es ~ ~ mclmJe: mclmJe: 4 4 3.3.2 3.3.2 othei: othei: m m fad:Ofi fad:Ofi which which u::ise u::ise ~ ~ oo.m.ideati.Ofl. oo.m.ideati.Ofl. fuJ: fuJ: ~ ~ 157 157 pcosecu.tion pcosecu.tion decision_ decision_ ~tion ~tion o:r o:r f!'W!ipects f!'W!ipects of of those those :respOfl'Siible :respOfl'Siible fur fur the the (d) (d) the the effect effect pos~ble pos~ble the the pe:rsonal pe:rsonal o:r o:r profession;ll profession;ll 0\ll 0\ll G:::wemment G:::wemment ac ac pofuic31 pofuic31 ;my ;my o~tion; o~tion; (c) (c) po]iticil po]iticil pos~ble pos~ble ad~ ad~ o:r o:r clis:ad~ clis:ad~ the the to to the the victHn;, victHn;, IX IX (b) (b) the the pmsecmoes pmsecmoes pe:rsaml pe:rsaml coru::eming coru::eming views views the the accused accused actMSed; actMSed; snms snms oc oc etbic;ll etbic;ll :religious~ :religious~ po]iticil po]iticil o:r o:r beliefs beliefs of of the the (a) (a) the the oolom:, oolom:, r.ace, r.ace, m ~dby. ~dby. 3.3.4 3.3.4 A A decisioo. decisioo. whecthe:r whecthe:r oc oc to· to· :1:1ot :1:1ot prosecute prosecute clearly clearly must must not not be be :releVam :releVam &ctocs &ctocs must must be be bilanced. bilanced. ~ ~ eases, eases, 'Will 'Will m m neeessacily neeessacily determinative determinative be be themselve:s; themselve:s; all all 3.3.3 3.3.3 None None of of Drtofi, Drtofi, these these oc oc indeed indeed any any o1!hea o1!hea mn.y mn.y wh:idl wh:idl a:ris.e a:ris.e in in 158 158 Narveson, Narveson, The The Libertarian Libertarian J. J. Idea, Idea, Broadview, Broadview, Ontario, Ontario, 2001. 2001. York, York, 2005. 2005. Miller, Miller, A. A. The The Body Body Never Never Lies: Lies: The The lingering lingering effects effects of of cruel cruel parenting, parenting, W.W. W.W. Norton, Norton, New New Wellington, Wellington, 1995. 1995. Metge, Metge, New New growth growth J. J. from from old: old: The The whanau whanau in in the the modern modern world, world, Victoria Victoria University University press, press, London, London, 1997. 1997. King, King, M., M., A A Better Better World World for for Children: Children: Explorations Explorations in in Morality Morality and and Authority, Authority, Routledge, Routledge, Bass Bass Publishers, Publishers, San San Francisco, Francisco, 1997. 1997. Hyman, Hyman, The The Case Case I. I. Agaisnt Agaisnt Spanking. Spanking. How How to to discipline discipline your your child child without without hitting, hitting, Jossey Holmes, Holmes, S., S., Sunstein, Sunstein, & & S. S. The The Costs Costs of of Rights, Rights, W.W. W.W. Norton, Norton, New New York, York, 1999. 1999. of of physical physical abuse, abuse, Vintage Vintage Books, Books, New New York, York, 1992. 1992. Greven, Greven, Spare Spare the the Child! Child! P. P. The The religious religious roots roots of of punishment punishment and and the the psychological psychological impact impact Freeman, Freeman, M. M. The The Rights Rights and and Wrongs Wrongs of of Children, Children, Francis Francis Pinter, Pinter, London, London, 1983. 1983. Fortin, Fortin, Children's Children's J. J. Rights Rights and and the the Developing Developing Law, Law, 2nd 2nd Ed. Ed. 2003, 2003, page page 520 520 1988. 1988. Dworkin, Dworkin, G. G. The The Theory Theory and and Practice Practice of of Autonomy, Autonomy, Cambridge Cambridge University University Press, Press, New New York, York, Children, Children, Wellington, Wellington, 2005. 2005. Dobbs, Dobbs, Insights: Insights: T. T. Children Children and and young young people people speak speak out out about about family family discipline, discipline, Save Save the the introduction, introduction, ed. ed. Oxford Oxford University, University, Auckland, Auckland, 2005. 2005. 3rd 3rd Cheyne, Cheyne, C., C., Obrien, Obrien, M., M., Belgrave, Belgrave, & & M. M. Social Social Policy Policy in in Aotearoa Aotearoa New New Zealand: Zealand: A A critical critical Cambridge Cambridge University University Press, Press, Cambridge, Cambridge, 1998. 1998. Buchanan, Buchanan, A., A., Brock, Brock, Deciding Deciding & & D. D. for for Others: Others: The The Ethics Ethics of of Surrogate Surrogate Decision Decision Making, Making, Prevention Prevention of of Cruelty Cruelty to to Children, Children, London, London, 2002. 2002. Accord Accord Children Children Full Full Legal Legal Protection Protection from from Physical Physical Punishment, Punishment, National National Society Society for for the the Boyson, Boyson, Equal Equal Protection Protection R. R. for for Children: Children: An An Overview Overview of of the the Experience Experience of of Countries Countries that that Archard, Archard, Children: Children: D. D. Rights Rights and and Childhood, Childhood, Routledge, Routledge, London, London, 1993. 1993. Books Books Bibliography Bibliography 159 159 Aldershot, Aldershot, 1998. 1998. Sebba, Sebba, (Eds.) (Eds.) L. L. Children's Children's Rights Rights and and Traditional Traditional Values, Values, Dartmouth Dartmouth Publishing Publishing Company, Company, Falk, Falk, Z. Z. W. W. "Rights "Rights and and Autonomy- or or the the Best Best Interests Interests of of the the Child" Child" in in Douglas, Douglas, G. G. & & Press, Press, Oxford, Oxford, 1984, 1984, 153-167. 153-167. Dworkin, Dworkin, R. R. "Rights "Rights as as Trumps" Trumps" in in Waldron, Waldron, J. J. (Ed.) (Ed.) Theories Theories of of Rights, Rights, Oxford Oxford University University Violence Violence Against Against Children: Children: A A Challenge Challenge for for Society, Society, Berlin, Berlin, New New York, York, 1996, 1996, 19-25 19-25 Durrant, Durrant, J. J. "The "The E. E. Swedish Swedish Ban Ban on on Corporal Corporal Punishment" Punishment" in in de de Gruyter Gruyter W. W. (Ed.) (Ed.) Family Family Association, Association, Washington, Washington, 2002 2002 (Eds.) (Eds.) Violence Violence against against children children in in the the Family Family and and the the Community, Community, American American Psychological Psychological research research on on the the developmental developmental effects effects of of child child abuse" abuse" In In Tricket, Tricket, P. P. K., K., Schellenbach, Schellenbach, & & C. C. J., J., Crittenden, Crittenden, P. P. M., M., "Dangerous "Dangerous Behaviour Behaviour and and Dangerous Dangerous Contexts: Contexts: a a 35 35 year year perspective perspective on on Prout, Prout, A. A. (Eds.), (Eds.), Children, Children, Young Young People People and and Social Social Inclusion. Inclusion. Policy Policy Press, Press, Bristol, Bristol, 2006 2006 Cairns, Cairns, "Participation "Participation L. L. with with purpose" purpose" In In Tisdall, Tisdall, E. E. K. K. M, M, Davis, Davis, J. J. M., M., Hill, Hill, M., M., & & Century, Century, Thomson Thomson Dunmore, Dunmore, Southbank, Southbank, Australia, Australia, 2004. 2004. Children's Children's needs, needs, rights rights and and welfare: welfare: Developing Developing Strategies Strategies for for the the 'Whole 'Whole Child' Child' in in the the 21st 21st national national strategies: strategies: Investing Investing in in and and protecting protecting the the 'whole 'whole child"' child"' in in Breen, Breen, C. C. (Ed.) (Ed.) Breen, Breen, C. C. "The "The role role of of New New Zealand's Zealand's international international obligations obligations in in the the development development of of Chapters Chapters Books Books in banning banning the the physical physical punishment punishment of of children, children, Save Save the the Children Children New New Zealand, Zealand, 2008. 2008. Wood, Wood, B., B., Hassall, Hassall, 1., 1., Hook., Hook., G, G, Unreasonable Unreasonable Force. Force. New New Zealand's Zealand's journey journey towards towards Children's Children's Bureau/ Bureau/ Save Save the the Children, London, London, Children, 1998. 1998. Willow, Willow, C., C., Hyder Hyder T. T. & & It It Hurts Hurts You You Inside: Inside: Children Children talking talking about about smacking, smacking, National National Auckland, Auckland, 1991. 1991. Salmond, Salmond, A. A. Two Two Worlds: Worlds: First First meetings meetings between between Maori Maori and and Europeans Europeans 1642-1772, 1642-1772, Viking, Viking, Ritchie, Ritchie, J. J. Ritchie, Ritchie, & & J. J. Spare Spare the the Rod, Rod, George George Alien Alien and and Unwin, Unwin, Sydney, Sydney, 1981. 1981. Rawls, Rawls, J. J. A A Theory Theory of of Justice, Justice, Revised Revised Edition, Edition, Oxford Oxford University University Press, Press, Oxford, Oxford, 1999. 1999. Raz, Raz, J. J. The The Morality Morality of of Freedom Freedom Oxford, Oxford, Clarendon, Clarendon, 1986 1986 Zealand, Zealand, 2006. 2006. Children's Children's Commissioner, Commissioner, UNICEF UNICEF New New Zealand Zealand and and the the Families Families Commission, Commission, New New Pritchard, Pritchard, R. R. Children Children are are Unbeatable. Unbeatable. 7 7 very very good good reasons reasons not not to to hit hit children, children, Office Office of of the the Press, Press, London, London, 1989. 1989. Newell, Newell, P. P. Children Children are are People People Too. Too. The The case case against against physical physical punishment, punishment, Bedford Bedford Square Square 160 160 CA, CA, 2004 2004 Punishment Punishment by by Parents, Parents, Cognitive Cognitive Development Development and and Crime, Crime, AltaMira AltaMira Press, Press, Walnut Walnut Creek, Creek, A A Longitudinal Longitudinal Study" Study" In In Straus Straus M. M. A., A., The The (Ed.) (Ed.) Primordial Primordial Violence: Violence: Corporal Corporal Straus, Straus, M. M. A., A., "Corporal "Corporal Punishment Punishment and and Academic Academic Achievement Achievement Scores Scores of of Young Young Children: Children: 125-144. 125-144. M. M. J. J. An An (Ed.) (Ed.) Introduction Introduction to to Childhood Childhood Studies, Studies, Open Open University University Press, Press, Maidenhead, Maidenhead, 2004, 2004, Stainton Stainton Rogers, Rogers, W. W. "Promoting "Promoting better better childhoods: childhoods: constructions constructions of of child child concern" concern" in in Kehily, Kehily, London,2002,374-387. London,2002,374-387. The The (Ed.) (Ed.) New New Handbook Handbook of of Children's Children's Rights, Rights, Comparative Comparative Policy Policy and and Practice, Practice, Routledge, Routledge, Newell, Newell, P. P. "Global "Global progress progress towards towards giving giving up up the the habit habit of of hitting hitting children" children" in in Franklin, Franklin, B. B. International, International, Great Great Britain, Britain, 2000, 2000, 115-126. 115-126. Children's Children's Rights: Rights: 10 10 years years of of the the UN UN Convention Convention on on the the Rights Rights of of the the Child, Child, Kluwer Kluwer Law Law Newell, Newell, P. P. "Ending "Ending corporal corporal punishment punishment of of children" children" in in Fottrell, Fottrell, D. D. Revisiting Revisiting (Ed.) (Ed.) (Eds.) (Eds.) Frontiers Frontiers of of Family Family Law, Law, Chichester, Chichester, New New York, York, 1995. 1995. Newell, Newell, P. P. "Why "Why we we must must hitting hitting stop children" children" in in Bainham, Bainham, A., A., Pickford, Pickford, R., R., Pearl, Pearl, & & D. D. Practice, Practice, Routledge, Routledge, London, London, 1995, 1995, 215-226. 215-226. like like ...... "' "' in in Franklin, Franklin, B. B. The The (Ed.) (Ed.) Handbook Handbook of of Children's Children's Rights, Rights, Comparative Comparative Policy Policy and and Newell, Newell, P. P. "Respecting "Respecting children's children's right right to to physical physical integrity. integrity. 'What 'What the the world world might might be be Cambridge Cambridge University University Press, Press, Cambridge, Cambridge, 1989. 1989. Mill, Mill, J. J. "On "On Liberty" Liberty" (1859) (1859) reprinted reprinted in in Collini, Collini, S. S. On On (Ed.) (Ed.) Liberty Liberty and and Other Other Essays, Essays, Auckland, Auckland, 1998, 1998, 24. 24. Makereti, Makereti, "The "The way way it it used used to to be" be" in: in: Ihimaera, Ihimaera, W. W. Growing Growing (Ed.) (Ed.) up up Maori, Maori, Tandem Tandem Press, Press, University University Press, Press, New New Brunswick, Brunswick, 25-37. 25-37. potentials" potentials" in in Pufall, Pufall, P.B., P.B., Unsworth, Unsworth, & & R.P. R.P. (Eds.) (Eds.) Rethinking Rethinking Childhood, Childhood, Rutgers Rutgers Jarnes, Jarnes, A. A. "Understanding "Understanding childhood childhood from from an an interdisciplinary interdisciplinary perspective: perspective: Problems Problems and and Publishing Publishing Company Company Ltd, Ltd, Aldershot, Aldershot, 1996. 1996. Balance" Balance" in in Freeman, Freeman, M. M. Children's Children's (Ed.) (Ed.) Rights. Rights. A A Comparative Comparative Perspective, Perspective, Dartmouth Dartmouth Henaghan, Henaghan, M. M. "New "New Zealand Zealand and and the the Convention Convention on on the the Rights Rights of of the the Child: Child: A A Lack Lack of of Morality Morality and and Feminist Feminist Theory, Theory, University University ofCalgary ofCalgary Press, Press, Calgary, Calgary, 1987. 1987. Held, Held, V. V. "A "A Non Non Contractual Contractual Society" Society" in in Hanen, Hanen, M., M., and and Neilson, Neilson, K. K. (Eds.) (Eds.) Science, Science, Handbook Handbook of of Children's Children's Rights: Rights: Comparative Comparative Policy Policy and and Practice, Practice, Routledge, Routledge, London, London, 2002. 2002. Freeman Freeman M. M. "Children's "Children's ten ten rights years years after after ratification" ratification" in in B.. B.. Franklin, Franklin, The The (Ed.) (Ed.) New New Rights Rights Kluwer Kluwer Law Law International, International, Great Great Britain, Britain, 2002. 2002. Children's Children's Convention Convention on on the the Rights Rights of of the the Child", Child", in in Fottrell, Fottrell, D. D. Revisiting Revisiting (Ed.) (Ed.) Children's Children's Fottrell, Fottrell, D. D. "One "One Step Step Forward Forward or or Two Two Steps Steps Sideways? Sideways? Assessing Assessing the the First First Decade Decade of of the the 161 161 539-579 539-579 Experiences: Experiences: A A meta-analytic meta-analytic and and theoretical theoretical review review (2003) (2003) 128 128 Psychological Psychological Bulletin, Bulletin, 4, 4, Gershoff, Gershoff, E. E. T. T. Corporal Corporal Punishment Punishment by by Parents Parents and and Associated Associated Child Child Behaviours Behaviours and and determinism determinism (1994) (1994) International International 8 8 Journal Journal of of Law Law and and the the Family, Family, 42-63. 42-63. Eekelaar, Eekelaar, J. J. The The interests interests of of the the child child and and the the child's child's wishes: wishes: the the role role of of dynamic dynamic self Journal Journal of of Children's Children's Rights, Rights, 147-173. 147-173. Durrant, Durrant, J. J. E. E. Attitudes Attitudes towards towards physical physical punishment punishment Sweden Sweden in (2003) (2003) The The 11 11 International International University University of of Victoria. Victoria. submissions submissions to to the the Justice Justice and and Electoral Electoral Committee Committee (2007) (2007) Health Health Services Services Research Research Centre, Centre, Debski, Debski, S., S., Buckley, Buckley, S., S., Russell, Russell, M., M., Just Just who who do do we we think think children children are? are? An An analysis analysis of of Psychiatry, Psychiatry, Psychology Psychology and and Law, Law, 1, 1, 13-24 13-24 commitment commitment to to the the United United Nations Nations Convention Convention on on the the Rights Rights of of the the Child Child (1997) (1997) 4 4 Davies, Davies, E., E., Seymore, Seymore, F. F. Child Child Witnesses Witnesses in in the the Criminal Criminal Courts: Courts: Furthering Furthering New New Zealand's Zealand's 347-397. 347-397. Cruft, Cruft, R. R. Rights: Rights: Beyond Beyond Interest Interest Theory Theory and and Will Will Theory? Theory? (2004) (2004) Law Law 23 23 and and Philosophy, Philosophy, Universities Universities Law Law Review, Review, 370-388. 370-388. Caldwell, Caldwell, J. J. Parental Parental L. L. Physical Physical Punishment Punishment and and the the Law Law (1989) (1989) New New 13 13 Zealand Zealand [2002] [2002] New New Zealand Zealand Law Law Review Review 3, 3, 359-391. 359-391. Breen, Breen, C., C., The The Corporal Corporal Punishment Punishment of of Children Children in in New New Zealand: Zealand: The The Case Case for for Abolition Abolition Directions Directions (2003) (2003) Clinical Clinical 23 23 Psychology Psychology Review, Review, 2, 2, 197-224. 197-224. Benjet, Benjet, C., C., Kazdin, Kazdin, & & A. A. E. E. Spanking Spanking Children: Children: The The Controversies, Controversies, Findings Findings and and New New Parental Parental Smacking Smacking in in New New Zealand Zealand (2001) (2001) New New Zealand Zealand Law Law Review Review 1, 1, 1-34. 1-34. Ahdar, Ahdar, R. R. and and Allen, Allen, J., J., Smacking Smacking Taking Seriously: Seriously: The The case case for for Retaining Retaining the the Legality Legality of of Journal Journal Articles Articles (Eds.) (Eds.) Rutgers Rutgers Press, Press, London, London, 2004, 2004, 229-243. 229-243. Woodhouse, Woodhouse, B., B., "Re-visioning "Re-visioning Rights Rights for for Children" Children" Rethinking Rethinking in in Childhood, Childhood, Pufall Pufall et et al, al, research, research, Lawrence Lawrence Erlbaum, Erlbaum, 299-317 299-317 T., T., Stamp, Stamp, & & G. G. (Eds.) (Eds.) Parents, Parents, Children Children and and Communication: Communication: Frontiers Frontiers of of therapy therapy and and Wilson, Wilson, S., S., Whipple, Whipple, & & E., E., "Communication, "Communication, discipline discipline and and physical physical child child abuse". abuse". In In Socha, Socha, Yale Yale University University Press, Press, London, London, 2005. 2005. M. M. A. A. Donnelly, Donnelly, & & M. M. (Eds.) (Eds.) Corporal Corporal Punishment Punishment of of Children Children in in Theoretical Theoretical Perspective, Perspective, Straus, Straus, M. M. A. A. Donnelly, Donnelly, & & M., M., "Theoretical "Theoretical Approaches Approaches to to Corporal Corporal Punishment" Punishment" in in Straus, Straus, 162 162 International International Journal Journal of of Law Law and and the the Family, Family, 132-169. 132-169. McGoldrick, McGoldrick, D. D. The The United United Nations Nations Convention Convention on on the the Rights Rights of of the the Child Child (1991) (1991) 5 5 Children's Children's Rights Rights Volume Volume I, I, Aldershot, Aldershot, Ashgate Ashgate Dartmouth, Dartmouth, 2004. 2004. published published 62 62 Archiv Archiv fur fur Rechts-und Rechts-und Sozialphilosphie Sozialphilosphie 305. 305. Reproduced Reproduced in in Freeman, Freeman, M. M. (Ed) (Ed) MacCormick, MacCormick, N., N., Children's Children's Rights: Rights: A A Test-Case Test-Case for for Theories Theories of of Rights Rights (1976) (1976) originally originally Law Law Review Review 6 6 Ludbrook, Ludbrook, Corporal Corporal Punishment: Punishment: The The Last Last Days Days of of an an Uncivilised Uncivilised Institution Institution (1998) (1998) 40 40 Youth Youth 757. 757. Locke, Locke, J. J. Lock Lock on on Parental Parental Power Power (1989) (1989) 15 15 Population Population and and Development Review Review Development 4, 4, 749- Review, Review, 4, 4, 199-221. 199-221. Parents: Parents: An An updated updated Literature Literature Review Review (2000) (2000) 3 3 Clinical Clinical Child Child and and Family Family Psychology Psychology Larzelere, Larzelere, R. R. E. E. Child Child Outcomes Outcomes of of Non-Abusive Non-Abusive and and Customary Customary Physical Physical Punishment Punishment by by law law reform reform (2006) (2006) 26 26 Legal Legal Studies Studies 3, 3, 394-413. 394-413. Keating, Keating, H. H. Protecting Protecting or or punishing punishing children: children: physical physical punishment, punishment, human human rights rights and and English English Quarterly Quarterly 2, 2, 163-204. 163-204. Katz, Katz, D. D. The The Functional Functional Approach Approach to to the the Study Study of of Attitudes Attitudes (1960) (1960) 24 24 The The Public Public Opinion Opinion Paediatrics, Paediatrics, 3, 3, 641-652 641-652 Kalb, Kalb, M., M., Loeber, Loeber, L. L. & & Child Child R. R. Disobedience Disobedience and and Non-Compliance: Non-Compliance: A A Review Review (2003) (2003) 111 111 Hodgkin, Hodgkin, R. R. Why Why the the 'Gentle 'Gentle Smack' Smack' Should Should Go Go (1997) (1997) 11 11 Children Children and and Society, Society, 201-204. 201-204. 171. 171. Herring, Herring, J. J. Farewell Farewell Welfare? Welfare? (2005) (2005) 27 27 Journal Journal of of Social Social Welfare Welfare and and Family Family Law Law 2, 2, 159- Hall, Hall, M. M. Child Child Abuse Abuse vs. vs. Domestic Domestic Discipline Discipline (1998) (1998) Youth Youth Law Law Review, Review, November, November, 10-12. 10-12. Hart, Hart, H. H. A. A. Are Are There There L. L. Any Any Natural Natural Rights? Rights? (1955) (1955) 64 64 Philosophical Philosophical Review Review 2 2 175-191 175-191 Potion, Potion, N. N. Paternalism Paternalism (1979) (1979) 89 89 Ethics Ethics 2, 2, 191-198. 191-198. Freeman, Freeman, M. M. Children Children are are Unbeatable Unbeatable (1999) (1999) 13 13 Children Children and and Society, Society, 130-141. 130-141. Rights Rights 6, 6, 433-444. 433-444. Freeman, Freeman, M., M., The The Sociology Sociology of of Childhood Childhood (1998) (1998) The The International International Journal Journal of of Children's Children's and and the the Family, Family, 52-71. 52-71. Freeman, Freeman, M., M., Children's Children's 'Taking rights rights seriously seriously more (1992) (1992) 6 6 International International Journal Journal of of Law Law 163 163 Journal Journal 45 45 of of Marriage Marriage and and the the Family, Family, 917-926. 917-926. Ziegert, Ziegert, K.A. K.A. The The Swedish Swedish Prohibition Prohibition of of Corporal Corporal Punishment: Punishment: A A Preliminary Preliminary Report Report (1983) (1983) Psychology: Psychology: Applied, Applied, 3, 3, 187-195. 187-195. examination examination on on the the accuracy accuracy of of children's children's reports reports (2003) (2003) Journal Journal 9 9 of of Experimental Experimental Zajac, Zajac, R., R., Hayne, Hayne, H. H. I I don't don't think think that's that's what what really really happened: happened: The The effect effect of of cross Waldron, Waldron, J. J. Rights Rights in in Conflict Conflict (1989) (1989) Ethics Ethics 99 99 3, 3, 503-519 503-519 Wallington, Wallington, Corporal Corporal Punishment Punishment in in Schools Schools (1972) (1972) N.S. N.S. Review Review Juridicial 17 17 124 124 Zealand Zealand Family Family Law Law Journal267 Journal267 V V on on Dadelszen, Dadelszen, P. P. Judicial Judicial Reforms Reforms in in the the Family Family Court Court of of New New Zealand Zealand (2007) (2007) New New New New Zealand Zealand Family Family Law Law Journal14, Journal14, 14-22 14-22 Taylor, Taylor, N. N. Physical Physical punishment punishment of of children: children: international international legal legal developments developments (2005) (2005) 5(1) 5(1) parents? parents? (2004) (2004) Journal Journal 46 46 of of Advanced Advanced Nursing Nursing 3, 3, 311-318. 311-318. Taylor, Taylor, Redman, Redman, J., J., & & S. S. The The smacking smacking controversy: controversy: what what advice advice should should we we be be giving giving and and Young Young People People (2005) (2005) Te Te 3 3 Awatea Review Review Awatea 1, 1, 14-16. 14-16. Taylor, Taylor, Section Section A. A. 59: 59: Crimes Crimes Act Act 1961: 1961: The The Impact Impact of of Corporal Corporal Punishment Punishment on on Children Children Development Development Law Law Journal, Journal, 1-50. 1-50. Tamar, Tamar, E. E. A A positive positive right right to to protection protection for for children children (2004) (2004) Yale Yale 7 7 Human Human Rights Rights and and Child Child Abuse Abuse and and Neglect Neglect 9, 9, 1109-1114. 1109-1114. Straus, Straus, M. M. A. A. Corporal Corporal Punishment Punishment and and Primary Primary Prevention Prevention of of Physical Physical Abuse Abuse (2000) (2000) 24 24 Journal161(7), Journal161(7), 821-822. 821-822. Straus, Straus, M. M. A. A. Is Is it it Time Time to to Ban Ban Corporal Corporal Punishment Punishment of of Children? Children? (1999) (1999) Canadian Canadian Medical Medical (1999) (1999) Clinical Clinical 2 2 Child Child and and Family Family Psychology Psychology Review Review 2, 2, 55-70 55-70 prevalence, prevalence, chronicity, chronicity, severity severity and and duration duration in in relation relation to to child child and and family family characteristics characteristics Straus, Straus, M. M. A., A., Stewart, Stewart, & & H. H. Corporal Corporal J. J. Punishment Punishment by by American American Parents: Parents: National National data data on on Nicholson, Nicholson, A. A. Choose Choose to to hug hug not not hit hit (2008) (2008) Family Family 46 46 Court Court Review Review 1, 1, 11-36. 11-36. Rights, Rights, 149-170. 149-170. rights rights and and decision decision making making in in England England (1999) (1999) The The 7 7 International International Journal Journal of of Children's Children's Morrow, Morrow, V. V. "We "We are are people people too": too": Children's Children's and and young young people's people's perspectives perspectives on on children's children's 119 119 The The New New Zealand Zealand Journal, Journal, Medical 1228. 1228. parents' parents' use use of of physical physical punishment punishment and and other other disciplinary disciplinary measures measures during during childhood childhood (2006) (2006) Millichamp, Millichamp, Martin, Martin, J., J., Langley, Langley, J., J., J. J. On On the the receiving receiving end: end: young young adults adults describe describe their their 164 164 paper, paper, Wellington, Wellington, 1996. 1996. Law Law Commission, Commission, The The Evidence Evidence of of Children Children and and Other Other Vulnerable Vulnerable Witnesses: Witnesses: A A discussion discussion June June 20 20 2007 2007 Law, Law, http://www http://www .laws .laws 179 179 .co.nz/2007 .co.nz/2007 /06/crimes-substituted /06/crimes-substituted -section- 59-amendment.html, 59-amendment.html, Knight, Knight, Dean, Dean, Crimes Crimes (Substituted (Substituted Section Section 59) 59) Amendment Amendment Bill, Bill, Laws Laws 179 179 Elephants Elephants in in the the 2007. 2007. http://johnkey.co.nz/index.php?/archives/101-NEWSLETTER-KeyNotes-No-9.html, http://johnkey.co.nz/index.php?/archives/101-NEWSLETTER-KeyNotes-No-9.html, May May 2 2 Key, Key, John, John, Some Some sense sense on on smacking- at at last! last! Newsletter: Newsletter: Keynotes Keynotes No No 9, 9, others" others" [2006], [2006], 2. 2. Child Child Discipline) Discipline) Amendment Amendment Bill Bill (271-272) (271-272) and and petition petition of of Barry Barry Thomas Thomas and and 20,750 20,750 Justice Justice and and Electoral Electoral Select Select Committee, Committee, "Crimes "Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for 2008 2008 from from http://www.hrc.co.nz/report/actionplan/Oforeword.html http://www.hrc.co.nz/report/actionplan/Oforeword.html Human Human Rights Rights Commission, Commission, New New Zealand Zealand Action Action Plan Plan on on Human Human Rights, Rights, retrieved retrieved 4 4 March March on on the the Physical Physical Punishment Punishment of of Children- 18 18 and and 19 19 June June 2004, 2004, Wellington. Wellington. Courts, Courts, Children's Children's Issues Issues Centre Centre Seminar- "Stop "Stop it, it, it it hurts hurts me": me": Research Research and and Perspectives Perspectives Hancock, Hancock, J., J., (2004) (2004) The The Application Application of of Section Section 59 59 of of the the Crimes Crimes Act Act in in the the New New Zealand Zealand smacking smacking lobby lobby in in New New Zealand, Zealand, Wycliffe Wycliffe Christian Christian Schools, Schools, Auckland, Auckland, 2006. 2006. Drake, Drake, M. M. By By Fear Fear or or Fallacy. Fallacy. The The repression repression of of reason reason and and public public good good by by the the anti Developing Developing Law, Law, 2nd 2nd Ed. Ed. 2003, 2003, page page 523 523 Department Department of of Health Health et et al al (1999) (1999) "Working "Working together" together" in in Fortin Fortin Children's Children's Rights Rights and and the the Choose Choose to to Hug, Hug, not not to to Smack, Smack, Office Office of of the the Commissioner Commissioner of of and and Children EPOCH, EPOCH, 2001 2001 Child Child discipline discipline and and the the law, law, Bardardos Bardardos Information Information Sheet Sheet No.61, No.61, July July 2007 2007 of of Justice, Justice, 2001. 2001. Carswell, Carswell, S. S. Survey Survey on on public public attitudes attitudes towards towards the the physical physical punishment punishment of of children, children, Ministry Ministry Zealand, Zealand, 2005. 2005. amendment amendment of of Crimes Crimes Act Act 1961, 1961, section section 59, 59, Public Public Issues Issues Committee, Committee, Auckland Auckland New New Auckland Auckland District District Law Law Society, Society, Criminal Criminal responsibility responsibility for for domestic domestic discipline: discipline: the the repeal repeal or or August August 2003. 2003. New New Zealand, Zealand, Report Report for for UN UN Committee Committee on on the the Rights Rights of of the the Child, Child, CRC/C/93/ CRC/C/93/ Add.4, Add.4, 28 28 Action Action and and Children Youth Youth Aotearoa Aotearoa (inc), (inc), Parental Parental Corporal Corporal Punishment Punishment of of Children Children in in Research Research reports, reports, Government Government reports reports and and policy policy documents documents 165 165 Under Under Article Article 44, 44, paragraph paragraph l(b), l(b), of of the the Convention, Convention, 343rd 343rd meeting, meeting, CRC/C/58 CRC/C/58 the the Form Form and and Content Content of of Periodic Periodic Reports Reports to to be be Submitted Submitted by by States States Parties Parties United United Nations Nations Committee Committee on on the the Rights Rights of of the the Child Child (1996) (1996) General General Guidelines Guidelines Regarding Regarding due due in in 1995: 1995: New New Zealand. Zealand. 12/10/95, 12/10/95, CRC/C/28/Add.3. CRC/C/28/Add.3. (State (State Party Party Report) Report) United United Nations Nations Committee Committee on on the the Rights Rights of of the the Child Child (1995) (1995) Initial Initial reports reports of of States States parties parties Ireland, Ireland, 8th 8th Session, Session, CRC/C/15 CRC/C/15 Add Add 34 34 Committee Committee on on the the Rights Rights of of the the Child: Child: United United Kingdom Kingdom of of Great Great Britain Britain and and Northern Northern United United Nations Nations Committee Committee on on the the Rights Rights of of the the Child Child (1995) (1995) Concluding Concluding observations observations of of the the 2004, 2004, Office Office of of the the United United Nations Nations High High Commissioner Commissioner for for Human Human Rights Rights Status Status of of Ratifications Ratifications of of the the Principle Principle International International Human Human Rights Rights Treaties, Treaties, as as at at 9 9 June June 2004 2004 Issues Issues Centre, Centre, University University of of Otago, Otago, and and the the Office Office of of the the Children's Children's Commissioner, Commissioner, June June Smith, Smith, B. B. The The Discipline Discipline A. A. and and Guidance Guidance of of Children: Children: A A summary summary of of research, research, Children's Children's Prosecution Prosecution Guidelines, Guidelines, Crown Crown Law Law Office, Office, March March 1992. 1992. http://www http://www .police.govt.nz/resources/2007 .police.govt.nz/resources/2007 /section-59-activity-review/, /section-59-activity-review/, 20 20 December December 2007. 2007. ( ( Substitued Substitued section section 59) 59) Amendment Amendment Act Act 2007, 2007, Pope, Pope, R. R. Three Three month month review review of of Police Police activity activity following following the the enactment enactment of of the the Crimes Crimes dissertation, dissertation, University University of of Otago. Otago. Pickford, Pickford, S. S. (2006) (2006) The The Anti-Smacking Anti-Smacking Bill: Bill: Implications Implications for for Parents. Parents. LLB LLB (Honours) (Honours) Police Police Practice Practice Guide, Guide, http://www.police.govt.nz/news/release/3149.html, http://www.police.govt.nz/news/release/3149.html, 19 19 June June 2007. 2007. Peter Peter McKenzie McKenzie QC, QC, Table Table in in Parliament Parliament on on 13 13 March March 2007, 2007, (2007) (2007) 637 637 NZPD NZPD 7871. 7871. Palmer., Palmer., G., G., Law Law Commission, Commission, Crimes Crimes (Substituted (Substituted Section Section 59) 59) Amendment Amendment Bill: Bill: Opinion Opinion of of Commission Commission for for the the Justice Justice and and Electoral Electoral Committee, Committee, 8 8 November November 2006. 2006. Palmer, Palmer, G., G., Section Section 59 59 Amendment: Amendment: Options Options for for Consideration, Consideration, Report Report of of the the Law Law http://www http://www .fww .fww .org/articles/congres .org/articles/congres 1/amorita.htm 1/amorita.htm Culture-Comparative Culture-Comparative Analysis, Analysis, retrieved retrieved 16/3/07 16/3/07 from from Morita, Morita, Family Family Dissolution Dissolution A. A. and and the the Concept Concept of of Children's Children's Rights: Rights: A A Historical Historical and and 21 21 March March 2007 2007 Bill- Effect Effect on on Parental Parental Corrective Corrective Action, Action, legal legal opinion opinion prepared prepared for for Gordon Gordon Copeland Copeland MP, MP, McKenzie, McKenzie, P. P. Crimes Crimes (Abolition (Abolition of of Force Force as as a a justification justification for for Child Child Discipline) Discipline) Amendment Amendment http://www http://www .maxim.org.nz/index.cfmlpolicy .maxim.org.nz/index.cfmlpolicy research/article research/article ?id=618 ?id=618 Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bill, Bill, 1 1 February February 2006, 2006, Maxim Maxim Institute, Institute, Maxim Maxim Institute Institute written written submission submission on on the the Crimes Crimes (Abolition (Abolition of of Force Force as as a a 166 166 Treatment Treatment or or Punishment Punishment (1984) (1984) United United Nations Nations Convention Convention Against Against Torture Torture and and Other Other forms forms of of Cruel, Cruel, Inhuman Inhuman or or Degrading Degrading United United Nations Nations Convention Convention on on the the Rights Rights of of the the Child Child (1989) (1989) Universal Universal Declaration Declaration of of Human Human Rights Rights (1948) (1948) International International Covenant Covenant on on Civil Civil and and Political Political Rights Rights (1966) (1966) International International legal legal documents documents Domestic Domestic Law" Law" LLM LLM Research Research Paper, Paper, Victoria Victoria University, University, Wellington, Wellington, 1995. 1995. McLeod, McLeod, R. R. "The "The United United Nations Nations Convention Convention on on the the Rights Rights of of the the Child: Child: Implications Implications for for Theses Theses Torture: Torture: New New Zealand. Zealand. United United Nations Nations (2004) (2004) paragraph paragraph 7(e). 7(e). Treatment Treatment or or Conclusions Conclusions Punishment and and Recommendations Recommendations of of the the Committee Committee against against United United Nations Nations Committee Committee Against Against Torture Torture and and Other Other forms forms of of Cruel, Cruel, Inhuman Inhuman or or Degrading Degrading Geneva, Geneva, 15 15 May-2 May-2 June June 2006 2006 forms forms of of punishment punishment (arts. (arts. 19; 19; 28, 28, para. para. 2; 2; and and 37, 37, inter inter alia), alia), 42nd 42nd session, session, CRC/C/GC/8, CRC/C/GC/8, The The right right of of the the child child to to protection protection from from corporal corporal punishment punishment and and other other cruel cruel or or degrading degrading United United Nations Nations Committee Committee on on the the Rights Rights of of the the Child Child (2006) (2006) General General Comment Comment No. No. 8, 8, ninth ninth session session on on 3 3 June June 2005, 2005, CRC/C/58/Rev.l CRC/C/58/Rev.l Under Under Article Article 44, 44, paragraph paragraph l(b), l(b), of of the the Convention, Convention, Adopted Adopted the the by Committee Committee at at its its thirty the the Form Form and and Content Content of of Periodic Periodic Reports Reports to to be be Submitted Submitted by by States States Parties Parties United United Nations Nations Committee Committee on on the the Rights Rights of of the the Child Child (2005) (2005) General General Guidelines Guidelines Regarding Regarding Zealand, Zealand, 27/10/2003, 27/10/2003, CRC/C/15/Add.216 CRC/C/15/Add.216 United United Nations Nations Committee Committee on on the the Rights Rights of of the the Child Child (2003) (2003) Concluding Concluding observations: observations: New New consideration consideration of of the the second second periodic periodic report report of of New New Zealand, Zealand, 34th 34th session, session, CRC/C/93/ CRC/C/93/ Add. Add. 4 4 Convention Convention On On The The Rights Rights Of Of The The Child, Child, List List of of issues issues to to be be taken taken up up in in connection connection with with the the United United Nations Nations Committee Committee on on the the Rights Rights of of the the Child Child (2003) (2003) Implementation Implementation Of Of The The States States parties parties due due in in 2000: 2000: New New Zealand. Zealand. 12/03/2003, 12/03/2003, CRC/C/93/Add.4 CRC/C/93/Add.4 United United Nations Nations Committee Committee on on the the Rights Rights of of the the Child Child (2003) (2003) Second Second periodic periodic reports reports of of Committee Committee on on the the Rights Rights of of the the Child: Child: New New Zealand. Zealand. 24/01197, 24/01197, CRC/C/15/Add.71 CRC/C/15/Add.71 United United Nations Nations Committee Committee on on the the Rights Rights of of the the Child Child ( ( 1997) 1997) Concluding Concluding observations observations of of the the consideration consideration of of the the initial initial report report of of New New Zealand, Zealand, 14th 14th session, session, CRC/C/28/Add.3 CRC/C/28/Add.3 Convention Convention On On The The Rights Rights Of Of The The Child, Child, List List of of issues issues to to be be taken taken up up in in connection connection with with the the United United Nations Nations Committee Committee on on the the Rights Rights of of the the Child Child (1996) (1996) Implementation Implementation Of Of The The 167 167 (2005) (2005) 627 627 NZPD NZPD 22086 22086 Parliamentary Parliamentary debates debates reported reported from from the the Justice Justice and and Electoral Electoral Committee, Committee, no no 271-2 271-2 Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bill, Bill, As As 271-1 271-1 Crimes Crimes (Abolition (Abolition of of Force Force as as a a Justification Justification for for Child Child Discipline) Discipline) Amendment Amendment Bi112005, Bi112005, no no Bills Bills Evidence Evidence (Children) (Children) Act Act 1997 1997 Australia Australia Youth Youth Justice Justice Criminal Criminal Evidence Evidence Act Act 1999 1999 Children Children Act Act 2004 2004 UK UK Sentencing Sentencing Act Act 2002 2002 New New Zealand Zealand Bill Bill of of Rights Rights Act Act 1990 1990 Infants Infants Act Act 1908 1908 Human Human Rights Rights Act Act 1993 1993 Evidence Evidence Act Act 2006 2006 Crimes Crimes (Substituted (Substituted Section Section 59) 59) Act Act 2007 2007 Crimes Crimes Act Act 1961 1961 Crimes Crimes Act Act 1908 1908 Criminal Criminal Code Code Act Act 1893 1893 Children, Children, Young Young Persons Persons and and Their Their Families Families Act Act 1989 1989 Care Care of of Children Children Act Act 2004 2004 NZ NZ Legislation Legislation 168 168 "Christian "Christian schools' schools' smacking smacking plea plea fails" fails" Daily Daily Telegraph, Telegraph, London, London, 16 16 November November 2001. 2001. "Dad "Dad charged charged with with assault assault for for flicking flicking son's son's ear" ear" The The Press, Press, 29 29 January January 2008 2008 Media Media articles articles and and press press releases releases Yv Yv YHigh YHigh Court Court Auckland, Auckland, HC HC 122/97,27 122/97,27 February February 1998, 1998, Baragwanath Baragwanath J J T T v v UK; UK; V V v v UK[2000] UK[2000] Crim Crim LR LR 187, 187, ECtHR ECtHR Sharma Sharma v v Police Police High High Court Court Auckland Auckland A168/02, A168/02, 7 7 February February 2003 2003 Employment Employment [2001] [2001] EWHC EWHC Admin Admin 960, 960, [2002] [2002] 1 1 FLR FLR 493, 493, [2002] [2002] ELR ELR 214 214 The The Queen Queen on on the the application application of of Williamson Williamson v v Secretary Secretary of of State State for for Education Education and and Re Re the the Five Five M M Children Children [2004] [2004] NZFLR NZFLR 337 337 Re Re R R (minors) (minors) [1991] [1991] 2 2 All All ER ER 193 193 at at 198 198 Re Re I, I, M M and and [2000] [2000] NZFLR NZFLR T, T, 1089 1089 J J R v v R Wilson Wilson Unreported, Unreported, CA CA 216/01, 216/01, October October 24 2001 2001 R v v R Tai Tai [1976] [1976] 1 1 NZLR NZLR 1 1 (CA) (CA) R v v R Newell Newell High High Court Court Palmerston Palmerston North, North, 12 12 September September 2002, 2002, France France J. J. R v v R Murphy Murphy unreported, unreported, CA CA 18/83, 18/83, 2 2 August August 1893, 1893, Cooke Cooke J J R v v R Mead Mead [2002] [2002] 1 1 NZLR NZLR 594 594 (CA) (CA) R v v R Kelbie Kelbie [1996] [1996] Crim Crim LR LR 802 802 lnglis lnglis v v Police Police (1986) (1986) 2 2 CRNZ CRNZ 463 463 R v v R Hebert Hebert (1996) (1996) 107 107 CCC CCC (3d) (3d) 42; 42; 135 135 DLR DLR (4th) (4th) 577 577 (SCC) (SCC) R v v R Hende Hende [1996] [1996] 1 1 NZLR NZLR 153 153 R v v R Giles Giles High High Court Court Palmerston Palmerston North, North, T42/99, T42/99, 16 16 November November 1999, 1999, Wild Wild J. J. R v v R Drake Drake (1902) (1902) 22 22 NZLR NZLR 478 478 R v v R Donovan Donovan [1934] [1934] 2 2 KB KB 498 498 R v v R Brown Brown [1992] [1992] 2 2 All All ER ER 552 552 R v v R Accused Accused (1994) (1994) DCR DCR 883 883 Polynesian Polynesian Spa Spa Ltd Ltd v v Osborne Osborne [2005] [2005] NZAR NZAR 408 408 Police Police v. v. Kawiti Kawiti [2000] [2000] 1 1 NZLR NZLR 117 117 Kendall Kendall v v Director-General Director-General of of Social Social Welfare Welfare (1986) (1986) 3 3 FRNZ FRNZ 1 1 Kapi Kapi v. v. Ministry Ministry of of Transport Transport (1991) (1991) 8 8 CRNZ CRNZ 49 49 (CA) (CA) Hallett Hallett v v Attorney-General Attorney-General (No.2) (No.2) [1989] [1989] 2 2 NZLR NZLR 96 96 Gillick Gillick v v West West Norfolk Norfolk and and Wisbench Wisbench Health Health Authority Authority [1986] [1986] AC AC 112 112 Fox Fox v v Attorney Attorney General General [2002] [2002] 3 3 NZLR NZLR 62 62 Erick Erick v v Police Police High High Court Court Auckland, Auckland, M M 1734/8, 1734/8, 7 7 March March 1985, 1985, Heron Heron J J Collins Collins v v Wilcock Wilcock [1984] [1984] 1 1 W.L.R. W.L.R. 1173 1173 Ceramalus Ceramalus v v Police Police (1991) (1991) 7 7 CRNZ CRNZ 678 678 Ausage Ausage v v Ausage Ausage [1998] [1998] NZFLR NZFLR 72, 72, 80 80 A-G's A-G's Reference Reference (No (No 6 6 of of 1980) 1980) [1981] [1981] QB QB 715; 715; [1981] [1981] 2 2 All All ER ER 1057 1057 (CA) (CA) A v v A United United Kingdom Kingdom [1998] [1998] 2 2 FLR FLR 959 959 Cases Cases (2007) (2007) 638 638 NZPD NZPD 8432 8432 169 169 NZ NZ families: families: positive positive discipline. discipline. www www .casi.org.nz .casi.org.nz CASI: CASI: Churches Churches Agency Agency on on Social Social Issues Issues http://www http://www .brookersonline.co.nz/databases/modus/criminal/adams/toc?si= .brookersonline.co.nz/databases/modus/criminal/adams/toc?si= 15 15 Adams Adams on on Criminal Criminal Law Law Internet Internet Resources Resources April2007. April2007. "Turia "Turia says says colonisation colonisation and and Christianity Christianity to to blame blame for for smacking", smacking", New New Zealand Zealand Herald, Herald, 30 30 "Supernanny "Supernanny Busted" Busted" (2006) (2006) 65 65 Investigate Investigate 28. 28. http://stuff.co.nz/print/450 http://stuff.co.nz/print/450 1944a19715 1944a19715 .htrnl .htrnl Smacking Smacking petition petition falls falls short, short, retrieved retrieved 29 29 April April 2008 2008 from from http://www http://www .scoop .scoop .co.nz/stories/P00705/SOO .co.nz/stories/P00705/SOO 121.htm 121.htm the the Promotion Promotion of of Community Community Standards, Standards, 7 7 May May 2007, 2007, Smacking Smacking Crimes Crimes "Inconsequential"- Yet Yet Police Police Still Still Prosecuted, Prosecuted, Press Press Release: Release: Society Society for for "School "School dobs dobs mum mum to to CYF CYF for for hand hand smack" smack" stuff.co.nz, stuff.co.nz, 28/10/07 28/10/07 http://www.radionz.co.nz/news/latest/200707261310/green http://www.radionz.co.nz/news/latest/200707261310/green mp mp abandons abandons voting voting age age bill bill 13 13 August August 2008 2008 from from Radio Radio New New Zealand Zealand News, News, "Green "Green MP MP abandons abandons voting voting age age bill", bill", 26 26 July July 2007, 2007, Retrieved Retrieved 1 1 http://news.bbc.co.uk/1/hi/uk/3015226.stm http://news.bbc.co.uk/1/hi/uk/3015226.stm 'Pressure 'Pressure grows grows over over smacking smacking law', law', BBC BBC news, news, 24/6/2003; 24/6/2003; Please Please don't don't take take my my daughter! daughter! Advertisement Advertisement for for Family Family First, First, Sunday Sunday Star Star Times, Times, 28/1108. 28/1108. "Mother "Mother reported reported for for smacking smacking child's child's hand" hand" NZ NZ Herald, Herald, 28/10/07; 28/10/07; Release, Release, 20 20 February February 2008. 2008. Kiwis Kiwis remain remain opposed opposed to to "anti-smacking" "anti-smacking" legislation, legislation, Research Research New New Zealand, Zealand, Media Media Johnston, Johnston, M. M. "CYFS "CYFS files files on on smackers" smackers" NZ NZ Herald, Herald, 28/6/07 28/6/07 Hamilton, Hamilton, P. P. "Father "Father warned warned for for disciplining disciplining boy, boy, 3" 3" The The Press, Press, 14 14 January January 2008. 2008. Editor, Editor, "Ban "Ban the the rod", rod", The The Press, Press, 14 14 March March 2007. 2007. Coddington, Coddington, D. D. Disciplined Disciplined to to Death, Death, North North and and South, South, February February 2000, 2000, 32-44. 32-44. Cleave, Cleave, "Toddler's "Toddler's L. L. tantrum tantrum brings brings three three cops cops knocking" knocking" NZ NZ Herald, Herald, 14/8/07; 14/8/07; 170 170 Volumes Volumes 1 1 and and 2. 2. Brown Brown (ed) (ed) Shorter Shorter Oxford Oxford English English Dictionary Dictionary Edition, Edition, Oxford Oxford (5th (5th University University Press, Press, 2002) 2002) Dictionaries Dictionaries www www .thekiwiparty .thekiwiparty .org.nz .org.nz The The Kiwi Kiwi Party Party Naughty-Mat.aspx Naughty-Mat.aspx http://www http://www .supernanny .supernanny .eo. .eo. uk/ uk/ Advice/ Advice/ -/Parenting -/Parenting -Skills/ -/Discipline-and- -Skills/ Reward/The Supernanny Supernanny skills skills parenting http:/ http:/ /plato. /plato. stanford. stanford. edu/ edu/ entries/rights/#2.2 entries/rights/#2.2 Stanford Stanford Encyclopaedia Encyclopaedia of of Philosophy Philosophy http://www http://www .areyouok.org.nz/home. .areyouok.org.nz/home. php php Family Family Violence, Violence, It's It's Not Not Ok, Ok, NZ NZ Government Government campaign. campaign. www www .familyfirst.org.nz .familyfirst.org.nz Family Family First First http://www http://www .littlies .littlies .co.nz/page.asp .co.nz/page.asp ?id=246&level=3 ?id=246&level=3 Littlies Littlies http://www http://www .nzfamilies .nzfamilies .org.nz/parenting/positive-discipline.php .org.nz/parenting/positive-discipline.php