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Beyond Section 59: The way forward... Speech

It’s time

Address by Ian Calder, Chief Executive, Barnardos,
Beyond Section 59: The way forward ... Forum
15 October 2001, Wellington.


At 10.40am on 15 June this year a three year old girl was crying and wailing on the floor of the foyer of the Wellington District Court. Her mother allegedly had kicked the child in the back, pulled her up by her arm and jerked her head backwards by her hair. Fortunately the girl was not physically hurt. The Police, to their credit, prosecuted and in mid-August the case came to trial. According to the newspaper report Judge David Ongley dismissed the charges finding that the Police had not proved beyond reasonable doubt that the force used was beyond that allowed by a parent to discipline a child.

That’s what this forum is all about.

Let us be clear about this. That little three year old suffered a serious and traumatic assault in the District Court. And the law of the land failed to protect her. Instead it gave the assailant a defence. The incident in the Wellington District Court on 15 June has graphically demonstrated that in the eyes of the law of New Zealand that little girl is a lesser version of humanity who in certain circumstances can be assaulted with impunity.

So let’s stop calling our children taonga, our most precious heritage. Let’s stop saying they represent our national future until such time as we genuinely mean it and demonstrate it.

Let’s consider the incident for a moment from the mother’s point of view. I have no doubt that she was a very worried and stressed woman acting on the spur of the moment with anger at her little child’s exasperating behaviour. I have no doubt either that if she thought about her actions quietly that she took no pride in what she had done and probably is ashamed of herself. For this was not the measured smack administered with love that the proponents of corporal punishment talk about. This was angry violence - a kick in the back, a yanked arm, pulled hair.

I’m sure also that if it had been an adult, her partner perhaps, who under the same stress and anger had kicked the mother in the back, pulled her arm and hair, that she would expect the court to have found him guilty of assault. And rightly so too.

But what message did the law give that mother when the matter went to trial last August? It told her that what she had done was OK, it was not illegal to kick and yank a small child.

Illegal if done to an adult, illegal if done to an animal, but legal if done to a child by a parent or caregiver.

Let’s reiterate. We are not talking about a smack. We are not talking about thoughtful discipline. We are talking about an angry assault. And the Wellington District Court found that the law protects the parent who kicks and yanks a child, pulls a child’s hair. To the three year old girl - no protection, no justice.
And that’s what wrong with section 59 of the Crimes Act. It denies the full humanity of the child. And it gives a contradictory message to parents about violence.

If that is what the law has to say to the little three year old and her mother, is it any wonder that this country has such a bad record of child abuse?

But there are other problems with section 59. One which must seriously concern both the wider community and politicians is that it leads to inconsistent decisions. I know of three reported cases this year alone where the courts have come to widely different decisions. And that is unfair on both children and parents.

First, a father was charged with assault after admitting that he used his leather belt to administer two hard whacks to his 10 year old son’s backside. The boy has ADHD syndrome and was very difficult to control. He sometimes placed himself at risk of physical injury. The parents explained on TV that they had come to the considered opinion that corporal punishment administered firmly was an act of love designed to better protect the child from himself by quickly and effectively stopping his dangerous behaviour. It was the classic example of the lovingly administered corporal punishment by a parent. When the matter went to court, section 59 was used as the defence: the punishment administered, it was submitted, was reasonable for the correction of the child’s behaviour. The court found against the father.

The message: the lovingly administered two strokes of a leather belt on a 10 year old’s backside was assault.

In February of this year a Hawkes Bay father used a piece of wood, “kindling” he argued, to administer six or seven strokes on a seven year old’s backside for persistent thieving and lying. A pediatrician submitted that the boy had been injured with serious bruising visible a couple of days after the incident. Again section 59 was used as a defence. In this case a jury found that the corporal punishment used was reasonable in the circumstances for the correction of the child’s behaviour.

The message: six or seven strokes with a piece of wood on the backside of a seven year old, even if it produces serious bruising, is OK.

And then in August, the court cleared our Wellington mother.

The message: kicking, yanking and hair pulling is reasonable correction of a three year old’s behaviour.

Is it good law which produces such inconsistencies? Is it good law that offers parents such ambiguous definitions of what is reasonable parenting? Does the law offer the children of New Zealand a clear unambiguous statement of what is their human right to freedom from violence?

I think not. As an ordinary citizen, a parent and grandparent, I believe that is evidence of bad law.

Which brings me to my next point. The law prevents the flogging of soldiers and seamen, of criminals and juvenile offenders. It is no longer legal for a householder to strike a servant, for an employer to strike an apprentice. It is no longer legal for a husband to use reasonable force in the correction of his wife. It is no longer legal for teachers to use corporal punishment in the correction of students. The message seems to be we are against the use of physical punishment.

So what is it about parents that makes them different? Why is it that the courts can no longer order flogging or caning of youth offenders; that teachers can no longer strap or cane disobedient students, but parents can beat, kick and pull the hair of a three year old?

I do not understand this contradiction. I genuinely do not understand.

I do understand that children are being smacked, beaten with belts, hit with pieces of wood, pummelled with fists, whipped with bicycle tyre tubes and fanbelts. I do understand that a steady stream of children pass through our hospitals with fearful injuries administered by parents and other family members.

But I just do not understand why sometimes it is OK if the assailant is a parent.

I know that there are some who believe that God has given parents this right and support this believe with a few inconsequential texts from the Book of Proverbs which make no mention of God at all. I know too that there are others who believe that the shock of a smack is an effective form of parenting to stop dangerous behaviour. I know also that the Minister of Justice believes that if section 59 is repealed smacking parents could suddenly be turned into criminals or subjected to lots of prosecutions. Others fear the courts will be clogged with extra cases. Yet others fear repeal would provide further state intrusion into the quiet life of the family.

But before all of these arguments stands the three year old Wellington girl to whom the court said: “we have no protection for you.”

There is I believe a way forward which I would like to see debated at this forum today. The proposal is not mine but has evolved from the discussions which have occurred between child advocates such as Roger McClay, the Commissioner for Children, Beth Woods and others; politicians such as Brian Donnelly and Bob Simcock; parents, lawyers and others. The proposal started to take shape at the Forum on the subject on 6 June 2001 convened by Roger McClay.

It is a multi-faceted approach which I believe does provide for the repeal of section 59 while avoiding or eliminating the various concerns which are raised by those hesitant about repeal.

First, let’s repeal section 59 and remove the common law defence of reasonable force in the correction of a child. Let’s have unambiguous law: assault is assault under any circumstances irrespective of who the assailant or the victim is.

Second, the legal amendment should not take immediate effect but there should be a twelve month period during which parents can be advised of the change and its meaning and alternative good parenting practice promoted.

Third, the risk of frivolous complaints of assault for smacking can be minimised by the development of a national charging policy for the Police. Such a policy could be developed during the twelve month period of grace with community involvement in its development. It would enable the Police to consistently distinguish the trivial from the more serious.

Fourth, active promotion of positive parenting techniques needs to be given greater priority and be more adequately funded.

Such a proposal, and I have set out only the barest bones of it, would -
· give children their full human right of freedom from violence
· give parents a clear and unambiguous message that corporal punishment is out
· give parents support and training in alternative parenting methods
· give the Police clear guidelines when to charge if a child is assaulted
· avoid the politician’s fear of parental backlash caused by anxiety over needless prosecution.

The issue of prosecution when a child has been assaulted or abused by a parent is a difficult one. Almost invariably the child does not want to see their mother or father punished, least of all taken away to prison. The child probably would say that all they wanted was for their parent to be a good parent and stop hitting them.

The Crimes Act is not designed to provide that sort of outcome. That’s why I prefer to see such cases dealt with before the Family Court under the Children, Young Persons and Their Families Act or the Domestic Violence Act. The best outcome for the child is achieved when the dysfunctional family becomes a loving functional family; when the violent ill-tempered parent becomes a caring
non-violent parent. This is not achieved by punishment; rather it is achieved by family support, parent education, anger management training, and such like.

This forum is the first part of a two part initiative. Our plan is to launch this proposal publicly today. We want you to take it away and reflect on it and discuss it with colleagues. Later in the year we plan to organise a workshop at which the various groups and organisations with an interest in the issue can evaluate it together.

In conclusion then I invite your participation in this forum. I welcome your views and those of the other speakers. And as we discuss the issue let’s keep before us the image of that stressed Wellington mother and the defenceless three year old child for whom the law offered no protection because of section 59 of the Crimes Act.

It truly is time it was repealed.

Ian Calder
Chief Executive

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