Smacking, section 59 and children

The assumption at large in the media that the government has “backed off” the repeal of Section 59 of the Crimes Act that gives parents the right to physically discipline their children is wrong, writes Social Services and Employment Minister Steve Maharey.

The assumption at large in the media that the government has “backed off” the repeal of Section 59 of the Crimes Act that gives parents the right to physically discipline their children is wrong. The truth is that the government is working through the issue and has not yet arrived at a conclusion.

The government began considering what to do about Section 59 in response to the United Nations Convention on the Rights of the Child.

Article 19 of the Convention requires “all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse…while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”. The United Nations Committee has criticised New Zealand because Section 59 of the Crimes Act (1961) permits parents to use “reasonable” force to discipline their children. Section 59 is seen as providing legal endorsement for the use of force when children are being disciplined.

New Zealanders should not take this criticism personally. The United Nations (UN) has criticised many nations because it argues that once the law endorses the use of physical punishment it is very difficult to divide excessive from so called reasonable force. Parents and caregivers who use force are able to use the defence that the law allows them to do so.

In response to the UN, an increasing number of nations have been changing their laws to ban the use of force against children (for example, Germany, Sweden, Finland and Israel) or carefully defining when and how force can be applied (for example, the American states of Washington, Delaware and Arkansas). The government has been looking closely at the experience of these nations and states as it considers what to do. A paper on these issues went to Cabinet in March of last year.

More recently Cabinet discussed a paper looking at the kinds of options which might allow us to meet the requirements of the United Nations but made no final decisions. However it did decide to invest in a campaign to provide parents and caregivers with alternatives to smacking. I have the responsibility for putting together a budget bid to pay for the programme.

In March next year Cabinet will again discuss what action might be taken in regard to Section 59. There are many options ranging from a legal ban on physical discipline (including smacking) to, defining exactly what force can be used on children and repeal of Section 59 of the Crimes Act. I favour the repeal of Section 59.

If Section 59 was repealed it would mean that parents and caregivers could not use the law to defend the use of physical discipline on children. However, it would not mean that a parent who restrained a toddler trying to get onto a busy road would face prosecution. Nor would a parent who smacked a child on the bottom. Such obviously necessary or trivial actions would not attract the attention of the law.

In other words children would be treated like everyone else in society. Adults are not allowed to physically punish or assault each other yet Section 59 currently provides a defence for adults who use force on children. Repeal of Section 59 would mean children would be protected from physical discipline within the family and their rights would be brought into line with those of adults.

There is no doubt that any changes to laws concerning the physical discipline of children will be controversial. That is good. It is time for New Zealanders to think long and hard about the amount of violence that is aimed at children. The horror stories we read about in the newspaper are just the tip of a very large iceberg which sees far too many children hurt by the very people who are supposed to be caring for them. Changing the way adults think about children and what is an appropriate way to discipline them is central to lowering the number of children who are scarred for life by violence.

In the many nations where this issue has already been considered, there has been a strong emphasis on education. The law cannot be changed without a very extensive programme aimed at ensuring parents and caregivers have positive alternatives to force. Children need to be provided with clear boundaries for their behaviour and where parents have relied on physical discipline they will need to know what to do.

All of this may sound like hard work. However, the smacking debate will not go away. The UN is not working in isolation. Its attempts to protect children from violence come from a worldwide concern about the issue. New Zealand is not at the cutting edge of the debate, it is following at least fifteen other nations (Sweden, Finland, Norway, Austria, Germany, Portugal, Italy, Israel, Cyprus, Denmark, Croatia, Latvia, Belgium, Bulgaria and the Republic of Ireland).

Of course, New Zealand started down this track back in 1990 when it removed the cane and the strap from schools. It was a tough choice. Teachers needed training so they could use alternatives to physical punishment. However, no one seems to be lobbying for a return to the old days. It is time to push out the frontier again.

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