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August 2010

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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

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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

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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

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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

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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, 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

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2005, 2005, no no 271-1 271-1

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Section Section 59(1)(a)-(d) 59(1)(a)-(d) Crimes Crimes Act Act 1961. 1961.

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Section Section 59(1) 59(1) Crimes Crimes Act Act 1961, 1961, prior prior to to amendment. amendment.

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Section Section 5 5 Crimes Crimes (Substituted (Substituted Section Section 59) 59) Amendment Amendment Act Act 2007. 2007.

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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

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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.

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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

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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

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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.

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Ibid, Ibid, volume volume 2 2 at at page page 2883. 2883.

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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

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1

Section Section 2 2 Crimes Crimes 1961. 1961. Act

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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,

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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

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Section Section 41 41 Crimes Crimes Act Act 1961. 1961.

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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

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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

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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:

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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.

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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

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Where Where the the force force used used was was considered considered to to be be reasonable reasonable in in the the circumstances. circumstances.

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For For example, example, picking picking a a child child up up and and putting putting them them in in time time out. out.

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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

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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

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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.

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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.

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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.

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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

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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

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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

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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 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, 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 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 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

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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.

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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

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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

Act,> Words Words inserted inserted by by a a majority majority

(Subject (Subject to to this this Act,) Act,) Words Words struck struck out out unanimously unanimously

Act,> Words Words struck struck out out by by a a majority majority

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 Amendments Amendments Education Education to to Act Act 1989 1989

"(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.

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