Physical Punishment of Children Outlawed
The private members’ Bill introduced by Green Party MP Sue Bradford was passed by Parliament on 16 May 2007 and will come into force on 21st June 2007. It had various names during its progress through Parliament but became Crimes (Substitution of Section 59) Amendment Act 2007 in its final form. Although there had been angry opposition to the Bill, it was passed by 113 votes in favour and 8 opposed, having gained the support of Labour and National parties, Maori party and New Zealand First as well as the Greens. Some United Future MPs also supported the Bill. New Zealand can take some pride in being the first English-speaking country to abolish the right of parents to smack and hit their children.
So many wild and misleading statements have been made about the Bill and its effect that it may be helpful to consider what the Bill means in practice. New Zealand law has long recognised a defence of ‘reasonable chastisement’. It was adopted in New Zealand as part of English common law and was given statutory force in Crimes Act 1908 and currently in s59 Crimes Act 1961. The reasonable chastisement defence allows parents and carers to use physical punishment to correct their children. Provided they use no more than reasonable force, they enjoy a special defence to any criminal charge or civil proceeding for assault.
This defence has meant that parents and carers have been able to assault and inflict pain on their children to correct their behaviour. The defence could be raised in respect of any criminal charge of which assault was an ingredient – whether a charge of common assault at the lower end of the scale or a charge of murder or manslaughter at the higher end. Obviously, the more serious the assault the less likely the court will accept that the force used was reasonable.
In every other situation the deliberate use of force against another person is a crime and a civil wrong for which damages can be recovered. Children have until now been the only group in society that can be assaulted without it being a criminal offence. It defies logic and common sense that the smallest and most vulnerable members of our society do not receive the protection from violence that all adults enjoy.
Section 59 has provided a defence in civil as well as criminal proceedings. Regulations which banned the use of force in a child care centre were in one case held invalid because regulations cannot take away a right given to carers by a statute. The Family Court, in considering disputes between parents over the care of their children or applications on behalf of a child for a protection order, have had to disregard reasonable physical punishment inflicted by a parent on a child. There was one law for violence towards spouses, partners and other adults and another law for violence against children.
Some of the arguments put forward by those who opposed the Bradford Bill were based on a misunderstanding or misrepresentation of the law:
Parents will not be able to protect their children from danger or harm
Section 59 has always been about punishment of children and was based on the belief that causing physical pain to children will improve their behaviour. The section has nothing to do with force used to protect children from harm. The common law has always recognised that parents have a right and a duty to act in their children’s best interests and to protect them from harm. Parents and carers can stop a toddler from running onto the road or from touching a heater. They can restrain a child from damaging property, hitting another child or an adult or
hurting an animal.
Parents will not be able to discipline their children and children will run wild
The law has always accepted that parents have the right to set boundaries for their children and to educate them in good behaviour. The amendment to s59 does not interfere with parents’ right to discipline their children by any method which does not constitute an assault. There are other more effective methods of discipline and punishment – methods which do not involve assaulting the child.
Parents should not be punished for giving their child a loving smack
Causing pain and humiliation to a child is hardly an act of love. A man who claims he slapped or punched his partner out of love would get little sympathy today from a court or from the general public. Most physical punishment meted out to children is given in anger.
Good parents will be criminalised for doing their best for their children
There is unlikely to be any sudden increase in the prosecution of parents who smack their children lightly. Research shows that physical punishment is most often used against toddlers and under-fives and takes place in the home. Young children rarely make complaints to the police and the police are unlikely to prosecute unless there is an independent witness or the child has suffered some physical injury. The police have always had a discretion whether to lay charges for assault in the case of minor assaults.
Most New Zealanders believe that smacking children is acceptable
Opinion polls on the acceptability of smacking show different results according to the way in which the questions are phrased. Children’s views on smacking have been consistent: it hurts, it makes them feel bad and they do not like it.
The changes made by the Bradford Bill will provide a field day for lawyers
Under the current s59 there have been a wide range of interpretations as to what is and is not reasonable force. There are cases where children have been thrashed with a cane or strap, whipped with an electric jug cord or hit with a riding crop or tennis racket and the judge or jury has acquitted the assailant on the basis of s59. The Bradford amendments replace a vague rule (Hitting children is OK so long as you do not hit them too hard) with one clear rule which is the same rule that has always applied to adults (Hitting people is an assault and is unlawful).
Because of the misinformation and misunderstanding that surrounded debate on the Bill a number of changes were made to the Bill on its passage through Parliament. These largely reflect what has always been the law but they do make it easier for parents and carers to understand what the effect the Bill would have on normal parenting of children.
The law as amended by the Bradford Bill makes it very clear that force may not be used to correct a child’s behaviour. Physical punishment of children is unlawful.
Amendments introduced by the Justice and Electoral Select Committee do not weaken the main thrust of the Bill that the use of force to correct children is unlawful. They do clarify that other rights and responsibilities of parents and carers are not affected. The Bill as passed confirms that parents and carers are justified in using force in four situations:
- Preventing or minimising harm to the child or another person;
- Preventing the child from engaging in, or continuing to engage in, criminal conduct, or offensive/disruptive behaviour;
- Performing the normal daily tasks that are incidental to good care and parenting.
These amendments distinguish between force used to correct the child’s behaviour (which is unlawful) and force used to restrain a child from engaging in dangerous, harmful offensive or disruptive behaviour or force used as part of normal parenting (which is lawful).
Another last minute amendment clarifies that the police may use their discretion in deciding whether to prosecute a parent or carer who administers corporal punishment to a child in their care. The police have always had a discretion whether to prosecute in cases of minor assaults but this amendment provides reassurance that where a complaint is made that a parent has given a child a light smack the police are likely to deal with the matter by a warning or by police diversion (which may involve the parent agreeing to participate in a parenting without violence programme).
Some parents may be uncertain over what they can or cannot do in controlling or disciplining their children. In interpreting the new s59 the courts are likely to look for guidance to earlier case law. The following is an attempt to explain to parents what they can and cannot do:
Parents and carers cannot:
- Hit or smack their children in a manner which causes more than trivial or inconsequential pain or causes injury.
- Punch or kick their children.
Shake or throw a baby or small child.
- Hit their children with a strap, electric cord, cane, wooden spoon, wacky stick, paddle or other object.
- Lock their child in a broom cupboard or confined space as a punishment.
- Threaten their children with a beating, thrashing or other violence.
Parents and carers can:
- Give their children a light tap with their hand to indicate that certain behaviours are unacceptable.
- Remove their children from risky situations and restrain their children from potentially dangerous activities such as running across a road or touching a heater.
- Change a baby’s nappies, bath young children, play physical games with their children, put their children to bed and do other things that parents normally do as part of normal parenting.
- Restrain their children from hitting, kicking or biting them, or hurting other children or adults or animals.
- Put children in their room as a punishment for misbehaviour. They can probably lock their children in their bedroom for a short period to allow them to calm down.
- Restrain their children from behaving in a disruptive or offensive manner. A child who is having a temper tantrum can be restrained from damaging property or hurting people. A child who takes items from supermarket shelves or misbehaves in a public place can be restrained. A teenager who goes out at night in breach of a reasonable parental curfew might be restrained by being locked in his or her room overnight.
- Take (forcibly if necessary) cigarettes, drugs or alcohol from a younger teenager and dispose of them.
- Engage in contact sport, physical play or games with their children but with due regard to their safety.
Robert Ludbrook, May 2007
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