http://www.thebriefingroom.com/archives/2007/03/the_smacking_de.html
INVESTIGATEMAGAZINE.TV
THE SMACKING DEBATE: QC'S OPINIONS
INTRO: It is now a matter of public record that repealing s59 of the Crimes Act will make parents technically guilty of assault if they smack their children, but Investigate has discovered something even the Bill's supporters hadn't considered: it will also open parents to prosecution if they physically put a child into time out. IAN WISHART interviewed leading Queens Counsel about the legal dangers of the anti-smacking Bill:
To say it is shaping up as one of the 'social engineering' fights of the Government's third term would be an understatement. The Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill promoted by Green MP Sue Bradford is pushing for a simple repeal of s59, the clause that gives parents a defence of "reasonable force" for the purposes of disciplining a child's behaviour.
In a letter to the organization Family Integrity last year, police headquarters not only confirmed that even a simple smack would be an assault, but suggested that because the Crimes Act already has increased penalties for crimes against children, an assault on a child would be more serious than an assault on an adult, in police eyes.
But while commentators on both sides of the divide have discussed whether police would lay charges or not, no one has explored whether other forms of discipline could also run foul of the proposed new law.
To explore that specific issue, we asked a number of top QCs to comment on whether a parent who carried or dragged a resistant child to 'time out' would also be breaking the law:
STUART GRIEVE, QC:
I would be opposed to the [repeal of s59] because I think that the provision works entirely adequately as it is. If one puts political correctness to one side, and just deals with these cases on an objective and pragmatic basis, the law has stood the test of time and I would have thought most reasonable people would know full well when the line is crossed between reasonable discipline on the one hand, and crossing that line on the other.
So I would be opposed to it, and as one looks at the test now it is left to a jury to determine reasonableness. And being a fan of jury trials anyway, and being a fan of the commonsense of juries, that's where I would leave it.
Q: What if a parent forcibly manhandles a 7 year old to another room to enforce time out. In your experience, could that be a prima facie assault?
A: Unquestionably! Not under the present statute of course, but those protections aside any unwanted touching, even threat of touching, can be an assault. It is so defined in the Crimes Act.
Q: What about the act of shutting a child in a bedroom or a garage for ten minutes to calm down. If the protection of reasonable force is removed, could that open a parent up to punishment for forcible detention?
A: Could do, I'd have to look at that more closely because that is a technical question, but it could do. If you remove the protection then you're left with a child being a normal individual, and it would be no different from doing that to some stranger, I suppose.
Q: What advice would you give to law makers?
A: My advice would be 'don't repeal it'. I would be asking for examples where it doesn't work well, or where it hasn't worked.
Q: Do you have a fear that it could be used in marital break-ups, or as a reason to get CYFS involved in a family?
A: Well it could do. Although I don't pretend to be a family lawyer I'm well aware of the fact that in these situations as you describe them, frequently false allegations are leveled, generally by women against males, and allegations of sexual abuse and that sort of thing in order to win custody battles and so forth. This will simply give them more ammunition.
GRANT ILLINGWORTH, QC
The thing that tends to mask the situation in the NZ environment is the fact that questions of assault as far as civil law are concerned have become less prominent because of the accident compensation legislation. As you will be aware, under the ACC legislation you can't generally sue someone for personal injury caused by accident, and accident is widely defined to include situations in which you're assaulted by somebody. So in New Zealand, even serious assaults don't get before the courts except in quite unusual
situations as a matter of civil liability.
Now, s59 is dealing only with criminal liability, and I suspect it is a lot more complicated than it appears on the surface, because taking away a criminal law defence doesn't necessarily change the underlying civil law principles. So there are two layers that must be considered. One is the criminal layer, the other is the civil layer. And in order to sort that situation one would have to give it quite a bit of thought and work through the principles.
But to confine the analysis to the criminal law only, if you simply take away a defence of reasonable force then every touching of another person becomes an assault, and you then open up a vast area of potentially criminal conduct. You criminalize a whole lot of conduct which to normal people would be utterly ridiculous to criminalize in relation to the way you treat your kids.
So I think it is a very important step, and I think it is something that has serious, wide-ranging implications and something that has to be considered very very carefully indeed.
I think you do have to distinguish between civil and criminal. Conduct that is not regarded as criminal, or not pursued and charged as criminal, can be taken into account even now in a Family Court context. It doesn't really matter to the Family Court whether you characterise something as criminal or not criminal, it's a question of whether it represents proper treatment of the child. It's going to the fundamental question of what is for the welfare of the child, what is in the child's best interests. They're looking at the situation through a different legal telescope.
I think the real problem is that arguably almost every form of physical contact with your children becomes an assault as a matter of the criminal law. If you take away s59, that's the issue.
And if the child uses force against you, what force can you use against the child? That's the real crunch issue. There may be lots of situations in which, very appropriately, a parent should avoid using force because it is unnecessary to do so. But there are some situations in which it is necessary and those situations would not necessarily fall within s48, which is the self defence provision.
That's one area in which use of force in self defence and defence of another is justified and will remain justified. But if you think about it, children can use force against their parents, and the parents won't be able to use force against the children, unless it is self defence.
S48 says 'Everyone is justified in using, in the defence of himself or another, such force as in the circumstances he believes them to be it is reasonable to use.' But it's got to be in the defence of himself or another. It can't simply be a child doing something naughty which involves the use of force, and preventing the child - for example - smashing up the living room.
It's not the defence of yourself or the defence of another. If your child goes beserk and starts smashing the furniture you might not be allowed to touch him. And if that's the result of revoking s59 - that you're exposed to a criminal charge of assault if you restrain a child in those circumstances, then that's completely nuts.
Q: Advice to the legislators as they consider this?
A: Obviously it will go to a select committee and they'll have the task of going through the various scenarios that could arise if this measure is adopted. That's the appropriate process, and the normal process when an important change is being considered.
But I think from my own part, having given it only a relatively short period of consideration, that simply to wipe out s59 could create some situations which are completely undesirable.
NICK DAVIDSON, QC
Q: The police are already on record as saying any smack would be a prima facie assault. Presumably that means that any physical contact for the purposes of discipline, such as a mother taking her child by the arm and forcing him into time out, would also be a prima facie assault?
A: Theoretically that must be right. It would come down to an exercise of discretion. But there could be savings in the legislation, such as safety of the child or removing a child from harm's way. Where it get's sticky is the very point you mentioned: if someone actually picks up a child and carts them off, because the difference between that and admonishing them, or hitting them, is so marginal as a matter of law I think it can only be dealt with by discretion. I think it's a very significant point.
Someone who will simply not leave a situation where the parents are sitting outside in the car, waiting for the child to get in the car, and having difficulties because the child is refusing to get in the car, what's a parent supposed to do? Leave the child on the side of the road, or pick them up and physically put them in the car?
Now if that's not for their care and protection, what is it? There's no defence to it.
And I think there's a failure to recognize the difference between smacking as such, and physically taking, with some force, children - because they can be quite big at 11 or 12 and you might have to deal with them in that way.
To me the question is, if you cannot discipline a child physically, you remove the defence to what is otherwise an assault, the physical handling of a child of itself is not necessarily a discipline and would be treated like any other contact between two people. But in a relationship between parent and child there will often have to be physical interventions.
Now you could not possibly classify an assault as a deliberate application of force to a child, where that is to save the child, or take it to safety. You could not in my view possibly treat that as an assault where the child, for the child's own sake, should be removed from one place to another. Where a child is out of control, for example.
So I think there must become a series of defences available where what is done is not for the purposes of inflicting force, but is a warrant to apply force for reasons which are for the good of the child.
Now we don't really have that available to us in law, but if you take assault as an example: you step in to assault someone else to defend someone - that's defence of another, and that's a defence. You step in to save someone from committing suicide, that's a defence. You step in to save someone from any act of self-harm, or the danger of walking across a road against traffic - that's a defence.
The reason it's a defence is that it's not an intentional application of force except by the warrant that you have to do so for the good of that person. Now I think that will become the proper test in law - that where the force is applied for the good of that child, not as a discipline but in order to protect the child in some way, or deal with the child where the child is out of control, but not to inflict force for the sake of that, is the distinction to be drawn as a matter of law.
Q: Grant Illingworth feels that where there are going to be issues is where your child is out of control - not necessarily a danger to themselves or anyone else - but nevertheless -
A: Impossible to control!
Q: .impossible.
A: I think that is exactly the point! The time out situation is the key, because if you narrow down all the examples that you mention, it comes down to this proposition: to protect the child? Absolute defence. To discipline the child? No. To take the child out of a situation where it is causing pandemonium? Questionable, because we don't have a marked defence on the statute for that purpose. That's why I think the law will develop a defence that, for the sake of the child as much as for the whole family, the child
is removed from a situation where the child for example is just screaming its head off and is just so out of control they're at a risk of harm.
The example you give, of trashing a house, is much more difficult, because the law in my view must allow a colour of right to prevent anyone doing that. You don't have to stand by and watch your house being trashed by anybody. I think you're entitled to protect your property, protect your person. What you can't do is go beyond the bounds of what the law allows.
I think if you can say that the intentional application of force was warranted, not for the purposes of discipline but for the purposes of restraint, I think the law will have to recognize it as a defence. So what I'm anticipating is that the law will develop a colour of right, it will have to.
Q: What about where a toddler or seven year old is just being outright disobedient, defying boundaries and authority, and in need of discipline, but not in need of restraint for their own safety?
A: Assault has always had various defences of the kind we've just been through, and to me it is about marking a boundary about what is effectively a legitimate form of restraint.
I think the law would have to develop a defence, the same way colour of right developed, that what you were doing - a technical assault - was justified because of the circumstances that were presented to the parent.
Q: Courts or parliament?
A: I think the courts will probably be the right place to deal with it. I think a District Court judge familiar with dealing with assault issues generally will see how this fits into a pattern of defences to assault.
I mean, technically there are not many defences to assault. You don't get charged with assault for taking someone in a headlock who's threatening someone else, because that's defence of another, but the trouble is those things don't generally have application to children. We're still talking about a form of restraint for a reason to do with the way people live in their homes. And there is the conundrum: how do you take the defences, and
they're well established, that apply outside and say it applies to the relationship between a parent and child inside a house?
I think you've hit it on the button. The crucial question is going to be, child hitting another child - grab the child and take it away, that's not assault. Child causing pandemonium, screaming its head off and threatening its own stability. You couldn't possibly be charged with assault for taking that child to another room provided it's reasonable force. That's not discipline, that's control.
It's the point at which it moves to discipline that I think the law has no answer at present. Because if you can't smack a child, what can you do by way of discipline to say 'you're behaving very badly, I do not like your language, you're going to go and sit in that room there!'
'I'm not going!'
'Right, I'm going to pick you up and put you in there'.
That's technically an assault. What's the warrant for it? We have no statutory defence to it.
On the other hand there is a tremendous amount of common sense in the police and the courts, so you're not going to see thousands of parents prosecuted for this. But yes there will be test cases, and the law will evolve.
IN SUMMARY, MAIN LEGAL POINTS:
A simple smack would definitely be a prima facie assault.
Touching a child for any disciplinary purpose, such as forcing them into time out, would definitely be a prima facie assault.
Touching a child for the purposes of his or her own safety, or the safety of others, or the safety of property, would be authorized by s41 and s48 of the Crimes Act, and therefore not an assault
Queens counciWhile police would have a 'discretion' as to whether to charge, in practice many police stations are already calling in CYF, who take a blanket "no smacking' approach and would be within their powers to remove children from parents, even if insufficient evidence existed to convict.
Posted by Ian Wishart at March 3, 2007 05:14 PM
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