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Removal of S. 59 Defence Will Split up Families

23 March 2007

Removal of S. 59 Defence Will Split up Families

A tragic case involving the criminalisation of two experienced, mature and loving foster parents for lightly smacking their foster boy for his extensive vandalism, and the splitting up for good of their family, serves as a serious warning to New Zealanders of what will happen if Sue Bradford’s “silly” and “ridiculous” bill, that seeks to repeal s. 59, becomes law. (These very same pejorative words were used by the Prime Minister Helen Clark in a live interview, in the context of her giving support to Bradford’s bill, to rubbish section 59 of the Crimes Act 1961 which provides a justification for parents to use “reasonable force” in the context of corrective domestic discipline of their kids).

Helen Clark, who has never had children (nor have her two male Labour party whips who are forcing all Labour MPs to support Bradford’s flawed bill,) has been quite wrong to rubbish s. 59. About 80-90 percent of New Zealanders strongly disagree with her. Based on extensive nation-wide polls over the last two years, they all want s. 59 retained and oppose Bradford’s flawed bill that has now become Clark’s troublesome ‘baby’. The remaining 10 to 20 percent who have swallowed Bradford’s rhetoric find it hard to believe that the government authorities will take kids away from good parents for formal complaints of smacking "correctly", should the bill become law. "It's just not going to happen for good parents who smack correctly" they scream at opponents of the bill. These vitriolic ideologues are already obsessed with proselytising their beliefs that only bad and inadequate parents smack their kids for corrective purposes.

In her recent Green Party press release Bradford denies that her bill will criminalise parents who use “reasonable force” (including light smacking) with their children to correct them. Clark too has claimed that the bill will not have the effect of banning smacking. Both claims are outright lies and they both know it. Their gullible and misguided followers assume that kids will not be taken away from parents by government agencies for “light smacking” or other applications of "reasonable force" used for correction. Bradford has beguiled them into believing that police will just turn a blind eye to all complaints over such mild forms of corporal corrective discipline. No doubt Clark and Bradford believe that they will be focused on pursuing rapists, murders and terrorists and will not be side-tracked by reports of smacking.

The case of foster parents Anne and Don Eathorne reveals how the government agency Child, Youth and Family Services (CYFS) removed two long-term foster kids from them just days after highly inflammatory allegations surfaced that they had been ‘abused’. The whole case was the subject of an intense and detailed expose on a TVNZ Sunday documentary that screened on 9 April 2006 (producer Chris Harrington TVNZ). The grave injustice by CYFS against the parents was well documented. The national case manager for CYFS, Ms Lorraine Williams, was interviewed at length on the programme about the case and repeatedly inferred that the couple were child abusers, thereby defaming them in a libellous and unprofessional outbursts. Her only basis for such vitriolic accusations was a “police file” containing ‘evidence’ against the couple, ‘evidence’ that the police saw fit not to pursue before the Court jury and so dropped.

The Eathornes had fostered 26 children over a number of years and had an unblemished record, prior to CYFS removing the two kids from them. At the time the programme went to air the Eathornes were still on the CYFS books as legitimate foster parents. As yet CYFS has failed to go through due process to remove them officially as foster parents and failed to follow due process when they removed the kids.

The Eathorne’s foster boy, aged 10 years at the time, was lovingly disciplined in 2002 by Anne Eathorne for wilfully causing about $5,000 damage (vandalism) to farm equipment owned by their employer. Some months later he did about $1,000 of damage to his school principal's car. He again was lovingly but firmly disciplined by Anne. Don Eathorne was not present at either discipline sessions. The “extensive property damage” that led to the discipline was noted in Judge Colin Doherty’s court decision in 2006 in which he convicted them of child assault for smacking. He had noted that they had gone way beyond the call of duty in paying for the medical bills of the boy, payments made prior to the corporal discipline. He noted that Anne had openly admitted to disciplining the boy when first approached by the police about the historical case.

CYFS who were ultimately responsible for the boy (and his sister) refused to pay anything towards the vandalism bills and deny to this day that the vandalism took place. The Eathornes were forced to cover both bills in full themselves. The boy ceased his vandalism after the second benign discipline session. Over two years later the incident was reported to CYFS, not by the boy who was disciplined, but by another older foster boy (a short-term placement that commenced on 7 April 2005) who heard about it through the 'victim' while stating short-term in the Eathorne's home. The older boy was placed by CYFS at very short notice, with the Eathornes in Karamea. CYFS could find no one else willing to care for him and the Eathorne's felt pressured by CYFS and then offered to assist. That boy, who arrived with no CYFS paperwork as required, was well known to CYFS social workers as a liar and a very troubled individual. He was dropped at their doorstep one evening. He got talking to the other two younger foster children and learnt of the historical ‘smacking’ incidents that occurred several years earlier. He then ran away from the Eathornes after staying only a few days with them and reported the 'assaults' to his CYFS social worker, embellishing the tale with a number of other claims of abuse.

CYFS acted within a few days of learning of the incidents and without notifying the foster parents or going through due process, arrived at their doorsteps and removed the boy AND his sister (both in long-term foster care). Don and Anne have had no access to the kids since. It is clear that CYFS worked closely with police to ensure that they faced serious charges in court. Both Anne and Don were fined $500 each in the Greymouth District Court on 30 January 2006 By Judge Colin Doherty, convicted of an assault against a child, under s 194 of the Crimes Act, and had to pay $130 in court costs. Neither can ever work with kids in any role again - professional or voluntary. The 'assault' consisted of two short smacks to the open palm of the hand delivered by Anne (Don was not present). The boy willingly complied with the corrective discipline and only reasonable force was used. He never raised any complaints with his CYFS social worker over the years prior to the matter coming to the attention of the police via the short-term foster boy’s complaint. Anne demonstrated on the Sunday programme how she carried out the safe smacking which in no way harmed the boy, as the Judge had noted.

The Judge accepted submissions from the parents' lawyer Mr Doug Taffs that the smacking discipline was "benign:" and "not gratuitous violence" (Dominion Post 11/02/06 NZPA story). He also accepted Mr Taff's submissions on behalf of his clients that they both had unblemished records as parents and foster parents and had gone well beyond the call of duty in covering medical expenses for the boy for his health problems prior to the two smacking incidents. He also accepted that it was appropriate for Mr Taffs to submit that they should both be discharged without conviction. However, to the Eathorne’s shock, he inexplicably convicted them BOTH of assault and fined them BOTH (total $1,130).

Following the two brief and benign discipline sessions, the foster boy's behaviour showed a marked improvement and the vandalism, according to the couple, ceased. Judge Colin Doherty who issued the judgement with reference to the Crimes Act 1961, did not make any reference to a s. 59 defence to assault and the couple's lawyer Mr Doug Taffs did not refer them to this possible defence that was technically open to them. Neither Don nor Anne had heard about a s. 59 defence at the time and were manipulated, they believe, into pleading guilty of smacking the boy, which Anne had never denied, in a so-called “plea-bargain”. Again, it must be stressed that Anne had always been upfront and honest and acknowledged that she had smacked the boy for wilful vandalism to correct his wayward behaviour. They expected to be discharged without a conviction after agreeing to the plea bargain, but the Judge instead accepted their honest admission of smacking using reasonable force for correction as an admission of assault, which clearly it was not, if s. 59 had been properly applied. S. 59 provides a justification for the use of such ALL parents and foster parents, but was ignored by the Court.

If Bradford succeeds in getting her flawed bill into law, the s. 59 defence will be gone altogether for all parents and caregivers. Parents who use ANY form of reasonable force (including light smacking) for the purpose of correction, will be committing a criminal offences in law and will open themselves up to having formal charges laid against them by their own kids, neighbours or zealous CYFS social workers based on hearsay evidence, and possibly find themselves convicted of assault and child abuse.

Parents and especially foster parents have much to be concerned about over this bill. There are six cases similar to the above involving CYFS that have been notified to the Families Commission by a member of our organisation. The Society documented others in its written and oral submission to the Justice and Electoral Committee considering Bradford's bill last year.


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