Section 59 defence thwarts attempt to split family
For immediate release….. Political Comment
for Promotion of Community Standards Inc.
P.O. Box 13-683 Johnsonville
26 March 2007
Section 59 defence thwarts attempt to split family
Judge Inglis QC did not support Child Youth and Family Services (CYFS) determined efforts to remove four foster boys from an outstanding foster parent “Mrs C” based on CYFS overblown “reservations” presented to the Family Court, over her very limited historic use of mild smacking for “correction”. In the Family Court in Auckland in July/August 2003 the Judge accepted Mrs C’s “evidence about the three occasions [she had smacked her boys] and that they were the only occasions on which the children had been smacked at her home.” The specific incidents came to light when a psychologist interviewed the boys. (CYFS have regularly instructed their social workers to inform parents that smacking is “child abuse”, “violence” and “hitting” and for years have deliberately and dishonestly conflated mild smacking with “child abuse”). The Judge accepted that section 59 of Crimes Act (1961) provided a justification for Mrs C and all foster parents to use “reasonable force” for correction of their children, despite the fact that CYFS had a policy against the use of corporal punishment. (Sue Bradford’s private members bill that all Labour MPs are being forced to support, in some cases against their conscience, would remove this justification/defence if it became law).
“The first [incident involving Mrs C]: was when she had parked her car, with all four children in it, on a slope, and one of the children mischievously let off the handbrake so that the car rolled back and there was nearly a serious accident. After reapplying the handbrake she gave that child a smack with her bare hand. The second was when she found two of the boys pocking pieces of paper into the electric radiator so as to start a fire. She gave each of them a smack with her bare hand. The third incident happened when it became known that one of the smaller boys had formed a habit of spreading faeces over the toilet seat and other available surfaces. She warned him of what would happen if he did it again, emphasising health risks, and when he did so she gave him a smack with her bare hand.” The Judge noted that “the psychologist, in her evidence, wished to record that she had detected no indication of excessive smacking, no signs of fear, that none of the boys appeared to be bothered about the incidents, and that there was in her opinion no question of physical abuse.” [Family Court, Auckland. CYFS 004082-086D 01, July 29, 30, 14 August 2003, par. 40].
If Ms Bradford’s ridiculous anti-family bill, that makes the use of “reasonable force” (including smacking) for the purposes of “correction” of a child, a criminal offence, becomes law; loving parents like Mrs “C” will have no legal defence against allegations of criminal activity leveled against them by CHEFS or any other agency or individual, once charged by police. Judge Inglis ruled that given the nature of the offences committed by the boys under Mrs C’s care, ‘ “correction” was necessary and that each child was smacked in that honest – and indeed justified – belief.’ He stated: “I am left in no doubt that each child would have clearly understood the reason why that punishment was necessary and would have seen it not as rejection by a loved and trusted adult or an arbitrary abuse of power, but as decisive, instant, necessary and fair correction… in each instance… the degree of force used was mild and reasonable within the context of the circumstances as they presented themselves as true.” [par 45] “In her oral evidence Mrs C acknowledged, with complete candour, that she had smacked one or other of the children on three separate occasions. I had no difficulty accepting the accuracy of her evidence that all those occasions were long before the present hearing, and that once the children understood – to their surprise – that she was capable of giving them a smack, she has never had occasion to do the same.” [par. 40]
Judge Inglis is one of the most highly respected and senior family court judges in New Zealand. He acknowledged that CYFS had “good reasons” to have a policy against the use of corporal punishment “given its responsibility for sometimes seriously physically abused children”. However, he noted that “there was some debate during the hearing on whether in circumstances of the present case the Department’s policy could be legally operative because of the provisions of the Crimes Act 1961, s 59”.
If Ms Bradford’s bill becomes law, the force of the amendments added during the select committee stage will be to ensure that whenever a parent or person in the place of a parent faces charges in court for using any form of force for the purposes of correction on a their child; once that purpose is established, there is no defence or justification they can appeal to in law. Even if the purpose involved other factors beside correction, for example safeguarding the health and well-being of the family, the component of correction, however slight, removes any defence they might have had if the purpose was ONLY that of stopping a dangerous behaviour/habit.
Judge Inglis commended “Mrs C” in the 2003 case for her outstanding parenting skills with the boys. He awarded her full custody of the boys to her and negated the custody order vested in the Chief Executive of CYFS that had made them custodians of the state. That department, so obsessed with its concerns over the ‘smacking’, had taken the ‘allegations’ of smacking (= “assault” in the assessment of CYFS) against Mrs C to the family Court in order to prove them and in the hope of blocking Mrs “C” from ever having custody of the boys again. Thank God Judge Inglis found that section 59 provided a defence for Mrs C’s loving and corrective actions.
The Society is calling on all MPs to vote against Sue Bradford’s “silly” and “ridiculous” bill. These pejorative words have been used by the Prime Minister, the Rt. Hon. Helen Clark, to rubbish s. 59 of the Crimes Act. (The Society chooses to apply the same words to apply to Bradford’s flawed bill). Bradford and Clark have both been guilty of lying to the New Zealand public by claiming that if the bill becomes law, it will not ban smacking outright and will not criminalise good parents who apply a mild smack to a child for correction.
The case involving “Mrs C” was presented to the Justice and Electoral Committee by the Society in its written and oral submissions on Ms Bradford’s flawed private member’s bill. The Labour and Green MPs on the committee exhibited no interest whatsoever in any aspect of the Society’s well-researched and comprehensive submission. It was very clear that their minds were not open to any viewpoint other than their own: the complete repeal of s. 59.
A summary of the Society’s submission can be found at: http://spcs.org.nz/content/view/97/41/