Why is it called the ‘anti-smacking’ law?

Quite simple really. This is what the architect of the law change (Green MP Sue Bradford) called it!

And groups who supported it such as Barnardos, Plunket and the Children’s Commissioner have all been calling for a ban on smacking since 2001. A key lobby group EPOCH (End Physical Punishment of Children) was established in 1997 with the aim of repealing section 59 of the Crimes Act. All of these groups have tried to argue that the current section59 is not an anti-smacking law, but it is.

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What does the law actually say?

The original section 59 said:

Domestic discipline
(1) Every parent of a child and, subject to subsection (3) of this section, 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 is reasonable in the circumstances.
(2) The reasonableness of the force used is a question of fact.

The new section 59 says:

Parental control
(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of—

(a) preventing or minimising harm to the child or another person; or
(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
(d) performing the normal daily tasks that are incidental to good care and parenting.

(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
(3) Subsection (2) prevails over subsection (1).
(4) To avoid doubt it is affirmed that police have the discretion not to prosecute complaints against parents of any child, or those standing in place of any child, in relation to an offence involving the use of force against a child where the offence is considered to be so inconsequential that there is no public interest in pursuing a prosecution.

EXPLANATION:

The best analysis we have seen of the new law comes from the Explanatory Note to the proposed bill to fix section 59 being sponsored by ACT MP John Boscawen. It includes the following…

“In many cases, parental guidance and correction will be non-physical. However, in some cases a parent may reasonably decide that correcting their children’s behaviour requires some degree of physical action. In these cases, section 59 says that parents are committing the crime of assault. Section 59(2) says that “Nothing … justifies the use of force for the purpose of correction.”

“This ban applies to any physical contact by a parent where the intention is to correct their child’s behaviour. This includes, for example, lifting up an unwilling child to put them into their room for “time out” as well as giving a light “smack.”

“As a result, the law can prevent parents from parenting effectively. It is inconsistent with society’s standards for good parenting; opinion polls consistently reveal public agreement that parents should be able to use a mild degree of physical correction.

“Although section 59 bans physical correction, it is often unclear to parents whether using reasonable force is permitted or whether it breaks the law. This is because section 59(1) allows parents to use reasonable force to prevent certain types of behaviour and to perform “the normal daily tasks that are incidental to good care and parenting.” However, the distinction between prevention and correction is unclear in many cases. Preventing particular actions will often amount to correcting them, especially when the action and the prevention are repeated.

“Section 59(4) also creates confusion with its reference to Police discretion. According to Members of Parliament, the intention of this subsection is to provide a safeguard against the consequences of banning reasonable physical correction, so that parents will not be “subject automatically to investigation and police prosecution” if they give their child a light “smack” to correct their behaviour. This leaves parents unsure about what is, in practice, permitted, and what standard they will be held to.

“Citizens have a right to know what the law requires and not to be subject to arbitrary enforcement. This is part of the principle of the rule of law. Section 59 is inconsistent with this principle. It represents a failure by Parliament to make clear law that gives its citizens certainty about how they may act.

“In addition, section 59(4) refers only to the Police. It does not apply to any other agency, such as Child, Youth and Family. These agencies may apply the letter of the law in their interactions with parents. It also does not apply to any private citizen who initiates a prosecution against a parent who has used reasonable force for correction.”

(our emphasis added)

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The law seems really confusing. Some people say that all smacking is banned, others say that it’s not

And that is part of the problem. The supporters of the anti-smacking law have confused the public by trying to mask its real effect. For example, compare these quotes from the architect of the law change, Sue Bradford.

  • 2007 - (Ms Bradford) ‘says it is already illegal to smack children’
  • 2008 - ‘Smacking has never been a criminal offence, and still isn't’
  • 2008 - ‘Ms Bradford says parents need to accept that it is no longer legal to hit children.’

In research done in March 2009, respondents were asked whether the new law makes it always illegal for parents to give their children a light smack. 55% said yes, 31% said no, and 14% didn’t know.

This proves just how confusing the law is to parents and it is this confusion that is causing huge harm. Parents have been given conflicting messages by the promoters of the law, there is no clear distinction between correction and prevention, legal opinions have contradicted each other, and on top of that is police discretion but not CYF discretion to investigate. Parents have a right to know whether they are parenting within the law or not. This law has just created confusion and as a result, good parents are being victimised. Meanwhile, the rate of child abuse continues.

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Why is a referendum being held on this issue?

Despite overwhelming opposition to the anti-smacking law, the politicians ignored the will of the people and passed the law. As a result, more than 300,000 signatures were gathered on a petition demanding a Referendum on the law change, and under the law this forced a Referendum to be held. It logically should have happened at the General Election in 2008 but the government was desperate to avoid reminding voters of this deeply unpopular law change. (Irrespective of the immediate issues surrounding this legislation, this disregard for the voters’ will is undermining of democracy and the democratic process.)

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What is the question being asked?

The question is, “Should a smack as part of good parental correction be a criminal offence in New Zealand?” This question was publicly posted well in advance and groups like Barnardos and EPOCH had plenty of opportunity to object to it – but they didn’t. Why? Because they didn’t believe that organisers of the petition demanding a Referendum would get the required 285,000 (10% of registered voters) signatures. Ultimately they don’t like the question because they don’t like the answer they come to – NO!

Click here for more info on the petition question

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But didn’t 113 MP ’s vote for the law change?

Yes they did. It was supposed to be a ‘conscience vote’ but the two major parties - Labour and National - were ‘whipped’ by their leaders (had to vote along party lines) to vote for the law. Not long before the law was changed John Key said in a TV interview,

“I personally think that political parties that get so removed from the voters do suffer, and I think Helen Clark is effectively whipping and forcing her caucus to do something which frankly, in my view, is largely a conscience vote which is the way National is treating it with their MP’s.”

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Is the referendum binding on the government?

The referendum will not be binding, which means that even if most people vote no, the Government doesn't have to listen to us. However, it will still send a powerful message to our representatives in Parliament that the people of New Zealand are not happy with this new law.

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But isn’t the law working?

Definitely not. As predicted, good families have become victims of unwarranted investigations and even prosecutions by police, and unwarranted and traumatising investigations (and even temporary removal of children) by Child Youth and Family (CYF). To give you an idea, the number of notifications to CYF has seen an explosion of over 30% in the year since the passing of the law (see graph below) yet the number of cases requiring further investigation (FARs) has decreased. We are wasting valuable police and CYF resources investigating cases that simply aren’t abuse – good parents reported by schools, neighbours and even the children themselves against their parents.


graph source: Briefing to Incoming Minister 2008

A CYF Community Panel Board Member said:

"I was concerned about the passing of Sue Bradford’s parenting bill, fearing that there would be an increase in the number of investigations of 'good' parents unnecessarily through our CYFS social services. Sadly this concern is becoming a reality. .. I can say without a doubt, that in my time I have seen a small but a definite increase in 'good' parents being investigated by our CYFS case workers. Any child who mentions to a school teacher that they have been smacked or touched in any physical way is brought under investigation and their names are indelibly logged onto our data base as a potential 'abuser'. I really feel sorry for these 'good parents' because of the fear that we as an organisation are now engendering upon their parenting practise. Sadly good parents are being lumped in together with the really bad ones and the source of this injustice is the bad legislation that an idealist like Sue Bradford has put together."

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The police aren’t prosecuting people for smacking, are they?

Once again, not true. The most recent Police 6 month review of the anti-smacking law shows that the law is a complete and utter waste of time as it fails to catch actual child abuse, wastes police resources and time, and targets non-abusive parents. The prosecution rate for ‘smacking’ and ‘minor acts of physical discipline’ is as low as 5-8% (see bottom chart) and even ‘other child assaults’ (all three categories have no statutory definition under the law) have up to 20% of them only warranting a warning (see middle chart). While the country struggles with the problem of the P-drug, violent crime including armed hold-ups, and boy racing which is killing our young people, the police are having to waste time and resources running around investigating parents who use a smack or minor act of physical discipline (see top table). This report, as with previous reports, continues to confirm that non-abusive parents are being investigated – which we always feared. These results will be trumpeted by the supporters of the law change for doing what? Nothing!

Note: The bottom two tables were obtained by Family First NZ under the Official Information Act.

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What is the difference between ‘smacking’ and ‘minor acts of physical discipline?

Good question! We asked the police that exact question. Their response to our Official Information Act request was “There is no statutory definition for either”. Notice though, that whenever a supporter of the legislation is approached for comment, they automatically equate all corrective parental discipline involving light smacking with violence – and it is very seldom that any interviewer or journalist challenges that assumption. Responsible parents know full well, however, that they are not one and the same thing.

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Do you have examples of good parents being investigated, prosecuted, and children being removed from families

Yes, unfortunately. There are plenty of examples. Click here to see examples. These are just the ones that we are aware of. There will be plenty of others that we don’t know about (as suggested by the CYF investigation figures above)

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But hasn’t the law helped to stop child abuse?

Unfortunately no – and this comes as no surprise to the architect of the bill Green MP Sue Bradford. In an interview in late 2007 as the child abuse death rate continued, she said,

“The epidemic of child abuse and child violence in this country continues – sadly. My bill was never intended to solve that problem.”

Since the passing of the anti-smacking law, there have been 12 child abuse deaths – continuing the same rate as before the anti-smacking law was passed. The change to the law has done nothing for the ‘Nia Glassies’ of our country. It is clear to everybody that there are far greater issues causing child abuse than a light smack on the bottom!

It is clear to everybody that there are far greater issues causing child abuse than a smack on the bum!

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So what are the causes of child abuse?

The 2003 UNICEF report “Child Maltreatment Deaths in Rich Nations” listed factors most commonly associated with the maltreatment of children including:

  • drug and alcohol abuse
  • family breakdown
  • poverty and stress
  • children not living with biological parents

A 2006 CYF report “Children at Increased Risk of Death from Maltreatment and Strategies for Prevention” identified

  • drug and alcohol abuse
  • family breakdown
  • poverty
  • domestic violence

as factors which signaled greater risk for children.

And a 2007 UNICEF Report “An overview of child well-being in rich countries” said that the likelihood of a child being injured or killed is associated with

  • drug or alcohol abuse
  • single-parenthood / weak family ties
  • poverty / poor housing
  • low maternal education
  • low maternal age at birth

Interestingly, in the UNICEF report, of the 10 top countries that were deemed safest and promoted the highest level of well-being for children, six hadn’t banned smacking. The safest country in the report hadn’t banned smacking. In other words, to try and suggest that a smack on the bum is child abuse is simply not true, and is an insult to good parents.

Family First is calling for a Royal Commission on the issue of family breakdown, family violence and child abuse www.stoptheabuse.org.nz

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What does the research say about smacking and child abuse?

There has been much research done in this area. But the studies cited by opponents of corporal punishment do not adequately distinguish the effects of smacking, as practiced by nonabusive parents, from the impact of severe physical punishment and abuse. Nor do they consider other factors that might account for problems later in life, like whether defiant or aggressive children might be more likely to be smacked in the first place. It simply assumes that the outcomes of a light smack will be the same as a child who is physically abused.

Yet research in NZ completely refutes this. A 2007 Otago University study found that children who were smacked in a reasonable way had similar or slightly better outcomes in terms of aggression, substance abuse, adult convictions and school achievement than those who were not smacked at all. And a study by the Christchurch School of Medicine found there was no difference in outcomes between no smacking and moderate physical punishment. They said, “It is misleading to imply that occasional or mild physical punishment has long term adverse consequences”.

Ultimately, it’s not the technique that the parent uses to correct their child that’s necessarily the problem – it’s the way it’s used. ‘Time out’ can become neglect, a ‘telling off’ can become verbal abuse which is degrading, humiliating, and potentially emotional abuse. Withdrawal of privileges can become denying the necessities of life, and even reasoning can become manipulation and bullying. Calling a smack ‘violent’ is like calling ‘timeout’ imprisonment, or withholding allowances as robbery!

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I often hear people quoting Sweden who banned smacking in 1979. Hasn’t that been a success story?

Research has shown that the Swedish smacking ban has done more harm than good. Following the banning of smacking in Sweden, child abuse increased 489% in 13 years following the ban, and assaults by children against other children increased 672%. Sweden’s foster care rate is double N.Z.’s rate – twice as many kids are being removed from their families.

Latest figures from Sweden (2007) show that reported assaults on children up to six years of age and between seven and fourteen increased by 13% and 8% respectively in 2007. The number of reported assault offences against both children and adults has increased since 1975 and today lies at a level that is nearly four times that of the 1975 figure.

Since the ban on smacking, there has been more than a 15-fold (1505%) increase in physical child abuse against children under the age of seven, and more than 24 times as many charges of criminal assaults by youth against other youth.


Diagram: The number of reported crimes against life and health, 1975-2007

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Why do groups like Barnardos and Plunket support the anti-smacking law?

These organisations mistakenly think that banning smacking will help reduce child abuse in New Zealand. Of course they’re right to be concerned about our rates of child abuse—we can all agree on that—but a light smack for correction is not the same as abuse. Their focus is in the wrong place. They should oppose a law that makes criminals out of good parents and that takes the focus away from where it should be—on the real causes of child abuse. Their frontline workers know this.

One social worker from Barnados told us

“I opposed the anti-smacking bill but my view was not taken into account. I was told to follow the organisation’s view – but there was no discussion. There was no gauging of the views of the workers who are working with these families.”

A Plunket Nurse told us

“This bill is causing such a negative effect on the families ... the families are feeling trapped that there is no-one who can truly help them that won’t judge or report them.”

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Is all ‘correction’ deemed bad, or just smacking?

Interesting question! At a recent Early Intervention Association conference, they were told that behaviour-control techniques such as ‘time out’ and the ‘naughty chair’ are unprofessional and in breach of the United Nations (UN) Declaration of the Rights of the Child and the national curriculum Te Whariki. The UNITEC lecturer said "What you're really doing is you're punishing the child for doing something that is not appropriate, instead of teaching them, which is our mandate."

Ironically, the UN Convention on the Rights of the Child says that countries " shall respect the responsibilities, rights and duties of parents ... to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance .."

 

 

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What's the solution?

"Let's deal with the real causes of child abuse" - the people of New Zealand have been quite clear on this point. We are sick of hearing case after case of innocent children being beaten and killed. (Click here to view our 'Stop The Abuse' poster)

The first part is to fix the current law so that good parents who use a non-abusive smack for the purpose of correction are not deemed to be committing a criminal offence in the eyes of the law and liable to potential investigation and interrogation by police and/or CYF. We are supporting the amendment being proposed by ACT MP John Boscawen which is similar to the amendment proposed by National MP Chester Borrows during the debate, and which was being supported by virtually all of the National MP’s.

The second part is to identify and target the real causes of child abuse that have been consistently identified by CYF, UNICEF and other international research. We believe the answer to the prevalence of child abuse in New Zealand includes:

  • working with families where children are at risk of physical and emotional abuse and neglect, and to help improve parenting skills
  • tackling significant contributing factors such as family breakdown, substance abuse and poverty
  • introducing policies which strengthen marriage, families and parental responsibility

Read the Open Letter sent to all MP’s at the time of the smacking debate in 2007 and signed by over 1200 kiwi mums, dads, and grandparents from all walks of life!

We can solve the issue of child abuse – but we must be willing to confront the real issues causing the abuse, without criminalising good parents who simply want to raise law-abiding and responsible citizens.

In the end what matters most is that the
voice of ordinary New Zealanders is heard!

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