Child discipline law does not make caring parents criminals

A legal opinion prepared by the Human Rights Commission finds that parents have little reason to be concerned that they risk being prosecuted if they give their child a trivial slap or smack.

The Commission has released the legal opinion to help inform debate in the upcoming referendum on the child discipline legislation.

Critics say the new law creates uncertainty for parents. However the legal opinion says the original section 59 of the Crimes Act was no clearer. It said the use of force by parents “by way of correction” was justified if the force was “reasonable in the circumstances.”

Because “reasonable” was open to interpretation, it led to parents being acquitted for disciplining their children with belts, hose pipes and pieces of wood.

Chief Human Rights Commissioner Rosslyn Noonan said, “We’re asking that all those with a genuine concern for the welfare of children and their parents provide accurate information rather than creating unfounded fears on this issue.”

The Commission’s legal opinion says that children may not be hit for the purpose of correction, but states: “Section 59 now allows parents (or someone acting in that role) to use reasonable force for a variety of purposes including the prevention of harm to the child” and to perform the normal daily job of providing good care and parenting.

The amendments gave the police the discretion to prosecute. When receiving a complaint, the police can choose not to prosecute if the offence is considered so “inconsequential that there is no public interest in proceeding with a prosecution.”

The Chief Commissioner said the police have used their discretion wisely and are not prosecuting parents without good reason.

Chief Commissioner Rosslyn Noonan said, “The real issue is that there should be no tolerance for violence against children, even in the guise of parental correction.”

The Human Rights Commission supported the amendments to section 59 because it meant that no longer could abusive parents charged with beating their children hide behind a spurious defence.

And because the amendments are a significant step in making real the human rights and responsibilities set out in the United Nations Convention on the Rights of the Child (UNCROC).

Ms Noonan regretted that the referendum question is so flawed that it cannot but provide a meaningless result. “The great shame is that the confusion the question has spawned will result in apathy and cynicism that will undermine still further people’s willingness to participate in New Zealand’s political processes.”

Legal opinion by the Human Rights Commission Crimes (Substituted Section 59) Amendment Act2007

Position Of The Human Rights Commission

Before 2007 section 59 Crimes Act allowed parents to use “reasonable” force to discipline their children. The law was changed because it was thought important that the legislation should reflect the fact that children have the same right to respect for their human dignity and physical integrity as adults, including the right not be subjected to violence in the guise of corporal punishment.

The Crimes (Substituted Section 59) Amendment Act 2007 is designed to ensure that the law reflects the best interests of the child. This does not mean that parents do not have the right to provide their children with direction and guidance. Rather, the law as it now stands signals what society considers is the appropriate way of going about this.

In arriving at its position, the Human Rights Commission took into account the international standards that New Zealand has committed itself to, international comment and jurisprudence from other like minded countries.

a. The international standards

The international legal standards have their origins in the Universal Declaration of Human Rights (the Declaration).

The Declaration, together with the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), make up the international Bill of Rights. Article 26 of the ICCPR confirms that everyone is entitled to equal protection of the law. Article 7 states that "No one shall be subjected to cruel, inhuman or degrading treatment or punishment". This has been interpreted as extending to "corporal punishment, including excessive chastisement ordered as punishment for crime or as an educative or disciplinary measure".[1]

The right to family life - which critics of the amendment claim is infringed by s.59 - .is found in both the ICCPR and ICESCR. Art.23 of ICCPR states that “the family is the natural and fundamental group of society and is entitled to protection by society and the State”. Art. 10 of the ICESCR states that “the widest possible protection and assistance shall be accorded to the family, which is the natural and fundamental unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children”.

The right to family has some bearing on this issue, the rights in other international instruments are also important particularly those in the United Nations Convention on the Rights of the Child (UNCROC). UNCROC recognises the importance of the family as the primary source of protection and assistance for the child and makes it clear that the child should grow up in a family environment, in an atmosphere of happiness, love and understanding. The articles of UNCROC which are relevant to the repeal of section 59 are:

[i] Article 3 which provides that in all actions by legislative bodies (and others) concerning children, the best interests of the child shall be a primary consideration, and requires State Parties to take all appropriate legislative measures to ensure the child's protection and care, "taking into account the rights and duties of his or her parents …";

[ii] Article 5 which requires the State to "respect the responsibilities, rights and duties of parents, or, where applicable, the members of the extended family or community as provided for by local custom … to provide … appropriate direction and guidance …"; and

[iii] Article 19 (1) which requires States to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

The extent to which countries observe and respect their international commitments is monitored by committees attached to individual treaties. These committees also provide guidance on interpretation of the treaties. The Committee on the Rights of the Child - which monitors implementation of UNCROC - has consistently said that legal and social acceptance of physical punishment of children, in the home and in institutions, is incompatible with the Convention.

The Committee has singled out for criticism legislation that allows some level of punishment such as “reasonable chastisement” or “moderate correction”, observing that the argument that a certain degree of physical punishment is in the “best interests” of the child cannot justify practices which conflict with the child’s dignity and right to physical integrity.

The Committee has also stated that there is no conflict between realising children’s rights and the importance of the family unit[2]. The Commission agrees. While it recognises that there is a right to family life, the right is not immune to challenge on the grounds that other rights are infringed.

a. Relevant case law

There have been a number of significant court cases relating to the right to family life and corporal punishment. Possibly the most relevant was decided in 1982 and involves a decision under Art.8 of the European Convention on Human Rights[3]. Seven Individuals v Sweden[4] required the European Commission of Human Rights to consider whether abolishing the defence of “reasonable chastisement” involved disproportionate interference with family life.

Sweden had amended its criminal law to make the law of assault which applied to adults applicable to children. This was challenged by parents who claimed that it infringed their right to respect for private and family life. The Commission rejected the complaint as manifestly ill-founded, noting that …

The fact that no distinction is made between the treatment of children by their parents and the same treatment applied to an adult stranger cannot, in the Commission’s opinion, constitute an ‘interference’ with respect for the applicant’s private and family lives since the consequences of an assault are equated in both cases.

The European Commission considered that the fact that legislation intervenes to regulate something relating to family life does not amount to a breach of art. 8(1). The scope of the law was a normal measure for the control of violence and its extension to the ordinary physical chastisement of children by their parents was intended to protect potentially weak and vulnerable members of society.

Although this decision is relatively old, in 2002 the UK House of Lords Joint Committee on Human Rights[5] considered that …

It was likely that the Court of Human Rights would today reach the same conclusion in any similar art.8 challenge which removed the defence of reasonable chastisement. Since 1982 when this case was decided, the Convention on the Rights of the Child has been adopted and almost universally accepted and … we consider that the Court of Human Rights would be influenced by the content of the Convention’s protections for children and the Committee’ s interpretation of these provisions.

A more recent case, A v UK[6], suggests that the State will not always be justified in simply not interfering with a right - such as right to dignity - but may have to act positively and actually create laws to ensure the right is full respected. In A v UK the European Court of Human Rights held that children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity.

a. Uncertainty

Critics of the legislation consider that the law is now so uncertain that many parents don’t know what they can or can’t do and risk prosecution for every slap, no matter how trivial, administered to a child in their care.

Before it was amended, under s.59 parents, or those acting in loco parentis, were justified in using force “by way of correction” towards a child if the force was “reasonable in the circumstances”. The reasonableness of the force was a question of fact. Section 59 now allows parents (or someone acting in that role) to use reasonable force for a variety of purposes including (inter alia) the prevention of harm to the child or others or to perform the normal daily tasks that are incidental to good care and parenting[7]. It does not, however, permit the use of force for the purpose of correction. There is also an avoidance of doubt provision, which confers discretion on the Police whether or not to prosecute if the offence is considered so inconsequential that there is no public interest in proceeding with a prosecution[8].

Legal certainty is particularly important in human rights law. Any legal constraints on a right must be sufficiently “accessible, precise and foreseeable” so that individuals are aware of the consequences of their actions. The guiding principle is that individuals must be able to regulate their conduct with a reasonable degree of certainty as to the legal consequences of acting one way rather than another[9]. The earlier original version of s.59 which stipulated that force must be “reasonable under the circumstances” provided any better guidance than the present legislation[10]. The subjectivity that inevitably dictated what parents considered permissible and the different interpretations of what is “reasonable” meant that parents were acquitted of disciplining their children even when they had used belts, hose pipes and pieces of wood to do so.

While the only way to import greater certainty would be to abolish s.59 entirely, even this may not be the complete answer since it will always be open to the police to decide whether or not to prosecute at common law. The Commission prefers a provision such as the amended s.59 which favours the child as the more vulnerable party.

a. Available defences

If the police decide to prosecute it is always open to the person being prosecuted to establish that the force employed was reasonable and designed to prevent the child harming themselves or was incidental to normal parenting.

The police now have the discretion whether to prosecute. This means that theoretically individuals could judicially review a decision by the Police to prosecute alleging, for example, that a certain assault was inconsequential and there was no public interest in prosecution. As Johnson notes[11]the possibility of judicial review means that the police will need to consider carefully whether an assault is inconsequential and given the grounds of judicial review, it will be absolutely necessary for the police to prove that in deciding to prosecute they had considered this statutorily mandated criterion. Failure to do so would be grounds for reviewing the decision.

The civil defence of necessity could also be used to justify conduct which would otherwise constitute interference with the person of another.

a. Police use of the discretion to prosecute

Critics of the amendment have always argued that the vagueness of the legislation has created a climate in which parents (or those acting in that role) do not know how far they can go in disciplining their children and that a light smack, for example, could led to prosecution and consequent criminalisation.

Following the introduction of the amendment the Police agreed to an initial three monthly review on the impact of the amendment on police activity and further reviews every six months thereafter. The most recent review[12] indicates that there was a decline in the number of assaults on children attending by Police over the six months from April to October 2008. While there were 258 assaults, only nine involved smacking and 49 minor acts of physical discipline. Police prosecuted one of the nine smacking incidents and four of the 49 child assault charges involving minor acts of physical discipline[13].

The data in these reviews suggests that the Police are not exercising their power under s.59 inappropriately and prosecuting people needlessly. [14]

a. Summary of the Commission’s position

Children are completely dependent on adults to give effect to their rights. Society has a duty to ensure those rights are respected.

Children have the same right to respect for their human dignity and physical integrity as everybody else including the right not to be subject to violence in the guise of corporal punishment.

While parents have responsibilities and duties, as well as the right, to provide appropriate direction and guidance, the wording of s.59 does not remove those rights, responsibilities or duties, but rather shapes how they should be exercised.

THE REFERENDUM

Should a smack as part of good parental correction be a criminal offence in New Zealand?

In July New Zealanders will be asked to answer “yes” or “no” to this question as part of a Citizens Initiated Referendum.

The Citizens Initiated Referenda Act 1993 provides for “the holding, on specific questions, of citizens initiated referenda”. A Referendum can be held where 10% of registered voters sign a petition agreeing to the question. The question itself has to be clear enough to elicit a logical response by conveying the purpose and effect of the Referendum. Only one of two answers can be given and the result must provide meaningful guidance to Government and Parliament.

Although such referenda can play an important role in a democracy, they are not binding.

The Commission queries whether this question can provide meaningful guidance to Government whatever the intentions of the organisers of the petition. The wording of the question is as likely to elicit “no” answers from people who support the amendment as from people who are seeking to have it changed.

The question is therefore unlikely to provide useful guidance. It will not tell the Government anything it does not already know. In a recent survey commissioned by the Human Rights Commission, for example, 83% of the respondents thought that a smack as part of good parental protection [sic] should not be a criminal offence and over 50% considered that the present law was not leading to some or very few unjustified prosecutions[15].

[1] UN Human Rights Committee General Comment 20: p108

[2] Committee on the Rights of the Child, General Comment 8:The right to protection from corporal punishment and other cruel or degrading forms of punishment 42nd session CRC/C/GC/8 (2007) [para27] available at www.unhcr.orgrefworld/docid/460bc7772.html

[3] Art.8 guarantees respect for private and family life but allows interference if there is a “pressing social need”.

[4] (1982) 29 DR 104 (E Comm)

[5] Joint Committee on Human Rights, Reasonable Chastisement Defence (2002) at www.parliament.uk

[6] (1999) 27 EHRR 611

[7] Section 59(1)(a)(d) Crimes Act 1961

[8] Section 59(4) Crimes Act 1961

[9] Supra, fn 7, at para 165

[10] We note, for example, that in Canada despite the Supreme Court in Canadian Foundation for Children, Youth and the Law v Canada (Attorney-General) [2004] 1 S.C.R 76, 2004 SCC 4, describing a similar phrase in the Canadian Criminal Code as not “unconstitutionally vague or overbroad”, draft legislation was introduced in 2007 to repeal section 43 of the Criminal Code (protection of children).

[11] J Johnson, “Anti-smacking” Law and Judicial Review, NZLJ (2009) at 13 but see also D Knight “Elephants and the law: Crimes (Substituted Section 59) Amendment Bill” at www.laws179.co.nz .in which the author suggests that the provision does nothing but legitimises an already existing option and that prosecutorial discretion is recognised by the Courts as non-justiciable.

[12] See www.police.govt.nz/resources/2008/section-59-activity-review/table-stats- 2.html

[13] Of the four prosecuted 3 were convicted for common assault and assault on a child and sentenced to 6 to 9 months supervision. The fourth was charged with both common assault and assault on a child and was remanded at large pending a hearing in January.

[14] The Commission recognises that there has been an increase in complaints about the use of more heavy handed force but to suggest that people should not be prosecuted in such cases would be to imply that a child’s safety is not the paramount consideration.

[15] The Child Smacking legislation UMR Omnibus results: April 2009

ENDS

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