- What does the law currently allow and not allow in terms of reasonable force and smacking?
- What advice would you give a parent if they feel a smack on the bottom is the best course of action to take, or they need to use reasonable force to control a child?
- What advice would you give a parent if they are contacted by CYF or Police regarding a complaint made involving smacking or reasonable force?
- Other comments
Just Released: SMACKING CASES HIT GOOD PARENTS – Legal Expert
Media Release 17 Nov 2014
An independent legal analysis of court cases involving prosecutions for smacking since the anti-smacking law was passed has found that the anti-smacking law is complicated, difficult to apply, and lower courts are getting it wrong. The analysis by Public Law Specialists Chen Palmer also says that statements made by politicians to the effect that the new section 59 does not criminalise “good parents” for lightly smacking their children are inconsistent with the legal effect of section 59 and the application of that section in practice.
<<READ THE FULL LEGAL ANALYSIS>>
1. WHAT DOES THE LAW CURRENTLY ALLOW AND NOT ALLOW IN TERMS OF REASONABLE FORCE AND SMACKING?
Greg King – Barrister
The simple position is that a parent who smacks their child risks being prosecuted, whether they are or not is at the discretion of the police! The law defines an assault as the intentional application of force by one person on another, no matter how slight. A smack, no matter how light, could certainly amount in law to an assault, whether or not it is justified or not depends on all of the relevant circumstances, but I repeat a parent who smacks a child risks being charged.
Phillip Ross – Barrister
There are four defences that are now available which permit the use of force in specific circumstances in section 59. There are also defences of general application (which permit the use of force not only against a child, but against any other person). The four specific circumstances where force may be used are:
- Preventing or minimising harm to the child or another person;
- Preventing the child from engaging in conduct that amounts to a criminal offence;
- Preventing the child from indulging in offensive or disruptive behaviour;
- Performing the normal daily tasks that are incidental to good care and parenting.
Note that these are specified in s 59(1) of the Crimes Act 1961. However, while these might appear to give broad discretion to parents, subsection (2) specifically precludes the force for correction or discipline. The boundaries are not entirely clear and the Courts are taking a purposive approach so that anything that appears to be discipline, regardless of how characterised, is likely to attract a conviction. I tried to argue in one case that the Â“forceÂ” was permitted as constituting the performance of normal daily tasks that are incidental to good care and parenting but the Court regarded it as discipline.
The other defences that are worth noting are self defence (section 48), defence of land or building and defence of movable property with claim of right. In cases of parents and children these are unlikely to apply, although in some circumstances self defence may apply. However, self defence requires that the force used be “reasonable” which means that the Court must consider it so, regardless of what the parent might think.
My view is that the law will allow such actions as restraining a child about to run onto a road or place him/herself in danger, or from assaulting another child. If your child is fighting another child, the law allows you to break up the fight. The provision regarding preventing conduct that amounts to a criminal offence is interesting. Children are not criminally responsible except in quite limited circumstances but this provision seems to apply regardless of whether the child could be charged with any offence. However, most of the time, this type of application of force will constitute a restraining hand rather than a smack.
Note too that there is a difference between a “crime” and an “offence”. A “crime” is defined in the Crimes Act and is a subset of “offence”. A purely summary offence is not a crime. However, even the use of force to restrain a minor offence will be excused under this provision.
The old lawyers adage that hard cases make bad law, perfectly describes the legislative process that lead to the present state of s59. For the sake of general principle of completeness, s59(4) does nothing more than unnecessarily restate the basic general principle of Police law, that the individual Policeman has a discretion as to whether to charge or not, and if charging, what to charge. Individual Police Officer, though bound by general directives by his superiors, is supposed to exercise this sort of discretion before every arrest, but few of the present generation of Police in New Zealand, seem to have any consciousness of that basic principle. In my view as a former Police Officer, that too is a failure of modern Police training. Notice also, that the s59(4) discretion applies to the prosecution discretion and it does not bind the court in any way.
Some years ago Police formed a policy largely based on expediency, to arrest all suspects charged with imprisonable offences. Time was when Police were required before arresting anybody to consider whether an arrest was necessary and in appropriate cases resort instead to the summons prosecution process. It is that policy that leads to a very significantly large number of people spending time in Police cells when a summons process would be equally effective but less convenient to the Police. The other police policy is an administrative policy applying to all “domestic violence” cases, that Police bail will not be offered. In my view, both these Police policies should have been seriously examined and qualified long before now, but I doubt that there will be much enthusiasm for that as the present policies are convenient and expedient to Police.
The repeal of the statutory defence under the old legislation simply means that any assault on a child by a parent is a Criminal offence. As a child is incapable of providing consent the lightest smack is an assault. By definition an assault is simply the intentional application of force. Technically a parent annoyed with a naughty child in a supermarket who grabs a child by the arm and pulls the child from the lolly stand is guilty of an assault. As such the concept of reasonable force is technically irrelevant.
Madeleine Flannagan – Barrister
The law provides that you can use reasonable force to keep your child safe but you cannot use it as a means of discipline; discipline must not involve force.
2. WHAT ADVICE WOULD YOU GIVE A PARENT IF THEY FEEL A SMACK ON THE BOTTOM IS THE BEST COURSE OF ACTION TO TAKE, OR THEY NEED TO USE REASONABLE FORCE TO CONTROL A CHILD?
Phillip Ross – Barrister
It is an offence to “smack” the child. Unfortunately the remedies available to parents in this situation are limited. A quick “smack” using nothing more than an open hand is probably unlikely to result in a charge, but it is in contravention of the law. Be aware too, that the provision in sub-section (4) which affirms the prosecutor’s discretion not to charge does not give the Court a similar discretion. The Court might discharge without conviction or convict and discharge, but it does not have an ability to dismiss the information (charge) on the basis that the use of force was trifling. There is a legal doctrine known as “de minimis non curat lex” – the law is not concerned with trifles. It has been recognised in the law overseas. However, in a New Zealand context, it is regarded as doubtful that it applies to the criminal law.
There is a legal doctrine known as “de minimis non curat lex” – the law is not concerned with trifles. It has been recognised in the law overseas. However, in a New Zealand context, it is regarded as doubtful that it applies to the criminal law.
My answer can only be – don’t! – particularly if anybody else is watching. The question whether they will be arrested and charged and prosecuted to conviction or acquittal, is so complicated as to make prediction of the outcome impossible. Not only is s59 expressed in such a way that prediction of outcome from particular action is impossible (and I for one would not risk it) but the outcome is often dependent on the sympathies and prejudices of many of the officials involved in the prosecution and court process.
This second area is difficult. Personally I consider that a light smack to the child’s bottom by a parent not out of anger but to reinforce a message is entirely appropriate but regrettably that form of discipline is now outlawed and constitutes a criminal offence. The second part of the issue relates to reasonable force. Unfortunately if I was advising a parent I would have to advise that there is no such concept of reasonable force that can be argued in the situation of disciplining a child. The lightest smack still constitutes an assault. As such concepts as a very light smack out of love means nothing – it is still an assault.
I would say that you need to think very carefully. At the moment you could potentially face a criminal charge, because I’ve seen clients in that situation. They’ve exhausted every remedy, they’ve tried talking to the child, they’ve tried time-out, the child says ‘No, get stuffed, I know my rights’, and if you lift a finger to your child, suddenly you could wind up the subject of a very intrusive police investigation. You need to get legal advice, particularly if suddenly parliament, under the Key administration, seeks to remove the right to trial by Jury to decent parents who are just trying to do their job.
Madeleine Flannagan – Barrister
If a parent feels a smack on the bottom is the best course of action to take as a means of discipline I would advise them not to as they could be at risk of being on the receiving end of a CYF investigation, a Police investigation or a Family Court proceeding brought by another parent or relative or other person.
If a parent needs to use reasonable force to control a child the parent should do so provided that it is necessary in the situation to keep the child safe and the force is not being used as a means of discipline.
3. WHAT ADVICE WOULD YOU GIVE A PARENT IF THEY ARE CONTACTED BY CYF OR POLICE REGARDING A COMPLAINT MADE INVOLVING SMACKING OR REASONABLE FORCE?
Greg King – Barrister
I would advise any one being interviewed about a potential criminal offence as a suspect to seek immediate legal advice before providing police with a statement.
Phillip Ross – Barrister
Generally speaking my advice to people facing allegations of criminal conduct is to make no statement. In some circumstances, a statement might see the matter resolved quickly if it is truly a very minor one, but if a statement is made it will be noted and if a prosecution results any later inconsistency will be highly detrimental to the defence. Many of my criminal defence clients admit the essence of the charge against them to the Police so they are in the position that the only viable action is an early guilty plea. If they call me before, rather than after talking to the Police, I almost always tell them not to say anything.
The Ministry of Social Development (CYFS) is a little different. If it is of a much lower level (say a smack with an open hand), in most cases, the Ministry is unlikely to take any adverse action although it may warn a parent. The Ministry will not seek to intervene (say, seeking orders under s 101 of the CYFS Act) if a parent gives a child a light smack. Bear in mind that children are encouraged to report such behaviour by parents or guardians (1984 anyone?) and they may embellish the facts.
As a Criminal Lawyer, my advice would invariably be not to say anything. While you may think you are able to justify your actions in a way that will be recognized by those two organizations as not requiring any further action from them, but almost invariably the explanation will be governed by the investigators in such a way that it will be very much against parents best interests. For example, in trying to explain the use of reasonable force, you will be forced into an admission of assault and the investigators protect themselves against complaint of inaction and the like, usually by charging. The down side of not offering and explanation to the investigators will however almost invariably be a decision by the investigator that they have no subsection (4) of s59 discretion to exercise and so they will arrest, charge and decline bail for the reasons already discussed. (But they will often do that anyway, irrespective of explanation.)
Every person in New Zealand has the Right to Silence as protected by the New Zealand Bill of Rights Act and a person exercising such a right or refusal to talk to the Police or Governmental agency cannot be criticized nor can any adverse inference be inferred or comment made. My advice is very simple – don’t say anything and seek advice from a lawyer or go to the local Community Law Centre. As a rider I would advise the unfortunate parent to tell the agency wanting to ask certain
questions that they have been advised not to make any comment and whilst they wish to fully cooperate they will seek advice and will make a statement once they have received the professional advice.
If a parent is contacted by police or CYFS in relation to an allegation of violence against a child, my advice, very strongly, is get a lawyer. Get one you’ve got faith in and you need to get legal advice before you open your mouth to police or CYFS. You certainly shouldn’t go down there alone. You need to have a lawyer with you. My experience is from the moment the police ring you on the phone, get hold of a lawyer and get legal advice. I can’t put it any plainer than that because the fact is from what I’ve seen, there’s some very good police out there doing a very good job. Having said that, there’s cases which come to court which jurors ask themselves, Why do these cases ever make it to court? And in part that may be because at the moment there are some police who over-charge with the idea of extracting a guilty plea for a lesser charge which I don’t think is a moral way to do this or a proper way. Rather what you should have is common sense being applied and to date there are some instances where I have seen that common sense is not exercised.
If a parent is approached by either CYF or the Police in respect of a notification or complaint involving smacking or the use of reasonable force the parent should try to ascertain what the nature of the concern is and how seriously CYF and/or the Police view it. Generally, the parent should politely refuse to discuss the matter with the Social Worker or the Police Officer until such time as they have been able to receive legal advice, especially if the allegation is serious.
If it is apparent that there has simply been a misunderstanding that could be cleared up by a quick explanation or otherwise fairly simply then by all means offer that up on the spot. If it becomes apparent that you are not being believed, again, as politely as possible stated that you would prefer to seek legal advice before saying anything further. The parent should then, as soon as possible, speak to a lawyer (Family Lawyer for CYF, Criminal Lawyer for the Police) and fully, frankly and honestly disclose to that lawyer anything and everything that the parent thinks the basis of the concern could be related to. Anything said to a lawyer who is acting for you is confidential. Once the parent then understands the legal implications of what he or she may or may not have done, and has received advice, then the parent should consider speaking with the Social Worker or the Police Officer.
4. OTHER COMMENTS?
Phillip Ross – Barrister
Most minor incidents would be charged as a Summary Offences Act common assault for which a jury trial election is unavailable. If a more serious charge is laid, a jury trial election could be made. Juries tend to be reluctant to interfere with genuine parental discipline and may even dismiss cases where the legal elements of the charge are made out. Judges will generally apply the law, and of course, they cannot do otherwise whatever they may think about it personally.
Consider too the effect in other areas of the law. If an application were made for a protection order (under the Domestic Violence Act), parental discipline could be invoked as a defence, but now that this is not a justification (ie: a defence to both criminal and civil proceedings), the threshold for obtaining a protection order has been reduced. Such orders may be sought by vindictive former partners.
You say that “parents are completely confused on the issue”. That’s not surprising – so too are the lawyers and even the Judges and personal prejudice / sympathy of officials is unpredictable, but often determinative of outcome.
In my view it is a pity that the Government of the time, for reasons best known to themselves, decided to amend the earlier form s59. in doing so, from the publicity I saw at the time, they claimed to be achieving by the amendment almost exactly the state of the law before s59 was amended. They have clearly not achieved that and they have made parenting a risky business indeed in terms of the legal consequences.
I feel that certain Australian state got it right when they actually defined what reasonable force really meant and broadly that went along the lines of “a light smack with the palm of the hand to that part of the child’s body below the shoulder line”. The problem in NZ has been in the rhetoric from the Parliament leading up to the repeal and subsequent statements relating to reasonable force and that the authorities will exercise discretion. This regrettable situation has led to incredible confusion with decent parents. The various statements have
caused immense confusion. Whilst the old system was not ideal it nonetheless had a defined yardstick and now that yardstick or guidance is barren and thwart with uncertainty. In my opinion the old law with its imperfections was clearly preferable.
John Key won’t see good parents being criminalised when all he does is get a review committee (Latta review) to work as a rubber stamp. So in essence he looks the other way when Mums and Dads are arguably being criminalised by an overzealous police force who have a habit of potentially over charging parents for what they actually do which is just being good Mums and Dads. This law change won’t stop those rotten parents who take a fence paling to a child or a jug chord. This law won’t change those people Â– you need far more effective interventions than this and that’s causing me concern. The fact is this law was passed for the very best of intentions, it has a positive social message and it has a great opportunity to provide good for New Zealand. But unfortunately, the way it’s been implemented or prosecuted at the moment, we’ve got good parents who are being caught up. And that’s extremely sad.
Madeleine Flannagan – Barrister
Parents may recall that more than one Member of Parliament stated that a light smack is not illegal and that good parents who did this would not be prosecuted. The law does not state this. Courts are obligated to apply laws as written on the statute books. The Police, while they can and do exercise discretion as to which cases they will and will not prosecute, are not the deciders of evidence, that is a Judge’s role. The Police will generally send a case on to Court if the evidence establishes that a breach of law has occurred, that is their job.
The other thing to keep in mind is that the Family Court does not require the same standard of evidence as the District Court. A case might not go anywhere in terms of a police prosecution but a parent could still end up being permitted only supervised contact with their child if there are reports of concern that they have smacked their child as a means of discipline. This could be brought about by CYF involvement or by another parent or relative of the child raising it as a concern before the court.
Philip Ross BE BA LLB
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