United Future launches Parental Discipline Bill

United Future today launched a private members bill which it's sponsor, Justice spokesman Murray Smith, says provides a moderate, commonsense approach to the physical disciplining of children which meets the concerns of those people who, like him, want to prevent child abuse but without 'throwing the baby out with the bathwater'.

Mr Smith says that there is a world of difference between appropriate, restrained, physical discipline of children by loving parents and the mindless, extreme assault of children by people in a guardianship role who are simply acting out of their own anger and frustration rather than having the child's best interests at heart.

This Bill, Mr Smith says, seeks to differentiate between the two and allow the court to punish abuse without criminalising good parents. It provides a list of factors for the court to consider in determining whether the force used constituted abuse including the intention of the person applying the force, its reasonableness, whether it was controlled or uncontrolled, whether it was considered or reactionary, its duration and frequency, the manner and extent of the use of any object and its medical effects. The child's age and physical size are also factors to be taken into account.

The Bill sets out the common ground between those who want to retain smacking and those that want it abolished, Mr Smith said - namely that genuine child abuse should be a criminal offence and that people who abuse their children should be convicted of assault.

Mr Smith believes that the Bill will get good support from the public and politicians. In a TV3 NFO poll late last year 74% of the 1000 respondents stated that they considered it acceptable for parents to smack their children while a Snapshot Poll on Radio Pacific at the same time found that 96% of the 160 responses agreed. But clearly there are few who believe that extreme forms of physical force are acceptable, as guaged from the strong public reaction to the terrible assaults on children that have hit the headlines over the last few years.

Perhaps more significantly, Mr Smith said, the Bill would provide a guideline for parents when considering their approaches to the disciplining of their children. Hopefully parents would increasingly see the use of physical force as a last resort to be used in a considered and controlled manner. Mr Smith said that this was the approach that he and his wife had adopted in the raising of their five children and that he had learnt that the threat of a smack was a more effective discipling tool than the smack itself but that the threat was useless if it could not ultimately be carried out.

Ends

Contact: Murray Smith
Tel: 470-6984
Cell: 021 390 920

Murray Smith: "Crimes (Parental Discipline) Amendment Bill" (Members Bill)

Explanatory note

Section 59 of the Crimes Act (Domestic discipline) has been the subject of considerable controversy; both in form and application. Some believe that, given the Court’s wide interpretation of the section, it constitutes nothing more than a justification for the physical abuse of children. Others believe that the option to use physical force is one which ought to continue to be available to parents who are seeking to nuture and discipline their children, and young children in particular.

Part 1 of this Bill recognises that section 59 has been used as a successful defence in cases that in reality amount to unjustified child abuse rather than normal parental discipline. Thus the purpose of this Bill is to ensure that section 59 is not used successfully as a defence for the physical abuse of children, while upholding the ability of parents to use physical force to discipline their children when appropriate. It clarifies the intent of section 59 by differentiating between discipline and abuse. The court is left with a broad discretion and flexibility in its application of the section but must have regard to the factors listed. When read together these factors provide a clear signal by Parliament to the court that it may not conclude that the use of force was justified when, in the circumstances, it clearly overstepped reasonable boundaries.

The threshold required to be met by parents seeking to use the provisions of section 59 to justify their actions is a very high one. The discipline must be reasonable, controlled, considered, of limited duration and frequency, and administered with the deliberate intention of disciplining. Where an object is used, the manner and extent of its use will be factors for the court to consider as will the medical effect of the actions on the child and the age and physical size of the child. It is intended that, by providing a high threshold, parents will be restrained in the extent of their use of physical correction and will consider other disciplinary options first.

Clause 6 and Part 2 of this Bill provide a clear signal to parents and persons in the place of parents that the physical abuse of children is unacceptable, by stiffening penalties and amending sentencing principles for child abuse-type offences.

Clause by clause analysis

Clauses 1 and 2 – Title and commencement

Clause 3 – states the purpose of the Bill; to clarify the application of section 59 and signal society’s intolerance of parents who abuse their children.

Clause 5 - clarifies the scope of section 59 by providing that force by way of correction is permissible provided that the force used does not constitute abuse. To define abuse, new section 59(2) outlines factors which the court must consider in deciding whether the case in question, constituted ‘abuse.’

Clause 6 – increases the maximum penalty for the assault of a child from 2 to 5 years. This makes the offence consistent with penalties provided in S.195 of the Crimes Act – Neglect of a child under 5 years.

Clause 8 – amends section 9(1) of the Sentencing Act 2002 – Aggravating factors in sentencing.

Although conceivably covered by existing section 9(1)(f) to (g), new paragraph (k) makes it explicit that, where an offence is committed by a parent against their child, their particular relationship is an aggravating factor which the court must take into account.

Contents

1Title
2Commencement
3Purpose

Part 1
Amendments to Crimes Act 1961

4Crimes Act 1961 called principal Act
5Domestic Discipline
6Assault on a child

Part 2
Amendments to Sentencing Act 2002

7Sentencing Act 2002 called principal Act
8 Aggravating factors in sentencing

The Parliament of New Zealand enacts as follows:

1Title
This Act is the Crimes (Parental Discipline) Amendment Act 2004.

2Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.

3Purpose
The purpose of this Act is
(a)to clarify the limitations on parental discipline allowed by the Crimes Act 1961 in order to prevent the Act being used to defend child abuse under the guise of parental discipline; and
(b)to provide a clear signal to parents and other persons acting in the place of parents that child abuse is something that New Zealand society finds unacceptable, particularly from persons who are in a place of responsibility for a child’s nurturing and general welfare.

Part 1
Amendments to Crimes Act 1961

4Crimes Act 1961 called principal Act
In this Part, the Crimes Act 1961 (1961 No 435) is called “the principal Act”.

Domestic discipline

Section 59 of the principal Act is amended by repealing subsections (1) and (2) and substituting the following subsections:“

(1) Every parent of a child and, subject to subsection (3), every person in the place of the parent of a child is justified in using force by way of correction towards the child if the force used does not constitute abuse.
“(2) In determining whether the force used did or did not constitute abuse the court must take into consideration the following factors:

(a)the intention of the person applying the force; and
(b)whether the force used was reasonable in the circumstances; and
(c)whether the force used was controlled or uncontrolled; and
(d)whether the force used was considered or reactionary; and
(e)the duration and frequency of the force applied; and
(f)where an object was used, the manner and extent of its use; and
(g)the medical effect of the application of the force; and
(h)the age and physical size of the child at the time the force was used; and
(i)any other matters or circumstances that the court considers to be relevant.”

6 Assault on a child
Section 194 of the principal Act is amended by omitting the words “2 years” and substituting the words “5 years”.

Part 2
Amendments to Sentencing Act 2002

7 Sentencing Act 2002 called principal Act
In this Part, the Sentencing Act 2002 (2002 No 9) is called “the principal Act”.

8 Aggravating factors in sentencing

Section 9(1) of the principal Act is amended by inserting the following paragraph:

“(k) that the relationship between the offender and the victim was that of parent (or person in the place of a parent) and dependent child, respectively.”

Last Update: 20 November 2004

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