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The right to smack children as a disciplinary measure has been fiercely debated since the contentious ‘anti-smacking law’ was first introduced in 2005.

Smacking is a common form of discipline in New Zealand and few people have avoided heated discussions on the emotive topic.

Most people can remember the sharp pain of a hand on bare skin for the ultimate of wrongdoings.

But far too many children suffer a lot more and New Zealand is embarrassingly guilty of extremely high child abuse and non-accidental death rates.

Under the old law, parents were exempt from prosecution for hitting a child under section 59 of the Crimes Act 1961 which read:

“Every 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.”

The law provided parents who abused their children with a defence in the name of conditioning them and was successfully used as a defence in cases where implements were used with force repeatedly, including an instance where a child was hit with a horse whip and cane.

There was an anomaly in the law – hitting a child was acceptable but applying the same force to an adult constitutes assault.

That was until amendments under the ‘anti-smacking’ law removed the defence of ‘reasonable in the circumstances.’

The proposed changes under an ‘anti-smacking bill’ incited loving parents, afraid of being prosecuted for a well-deserved tap in times of misbehaviour by their children.

A common line of argument held the state was too patronising in dictating how a child could be raised.

In any case, most of us had received the same punishment, hadn’t suffered unduly and are upstanding citizens.

However the issue focused on the right of the parent to discipline their child in any way they saw fit.

Sadly the reason for the changes – protection of vulnerable children – became a bi-product of fear mongering that parents would get punished for controlling the behaviour of their children.

History of the ‘anti-smacking’ legislation

New Zealand has a tragic history of child abuse and ‘non-accidental’ death.

In October 2003 the UN Convention on the Rights of the Child Committee issued a report criticising the legal right for parents to use ‘reasonable force’ when disciplining children saying:

“The Committee is deeply concerned that despite a review of legislation, the State party has still not amended section 59 of the Crimes Act 1961, which allows parents to use reasonable force to discipline their children.”

 The Committee called for an amendment to legislation to prohibit corporal punishment in the home.

Following this condemnation of the laws, then Prime Minister Helen Clark called for amendments to the legislation and accepted a five year work programme be implemented by the Committee to review the laws and systems for protecting children in NZ.

The ‘anti-smacking’ bill which called for amendments to s59 was the brain child of Green MP Sue Bradford.

Introduced in June 2005, the private members bill divided public opinion on the right of the state to intervene in parental correction.

Debates also raged in parliament when the bill was first introduced, with the National Party in adamant opposition to the invasion of discipline in homes.

But eventually both sides of the house were aligned on removing the defence of reasonable force.

By the final third reading of the bill in 2007, the National Party had done a complete turnabout on its opposition to the bill, which was passed with an overwhelming majority.

Only seven MPs out of 120 voted against it.

An agreed amendment to the legislation between Helen Clark and National Leader John Key said the police have the discretion not to prosecute parents when the offence was inconsequential.

The bill became controversial legislation on May 16, 2007, almost two years after it was first introduced.

Public debate and division over the rights of parents in disciplining their children has continued since.

As have the same rates of child abuse and non-accidental deaths.

The right to smack

Few people have been exempt from arguments over the necessity and legitimacy of the new law.

The effectiveness of physical discipline is also a contentious question.

Spare the rod spoil the child is an age old dispute but not having the choice to use the rod seems to have struck fear into all realms of society.

The panic lingered that children, knowing they aren’t allowed to be hit, would rule the roost.

It is therefore not surprising that since its inception, the law has received massive opposition and a petition against it was launched by Kiwi Party member Larry Baldock – to the relief of middle class NZ.

More than 1.4 million people voted ‘no’ to the ambiguous referendum question which closed in August this year ‘Should a smack, as part of good parental correction, be a criminal offence in New Zealand?’

The government subsequently ignored public opinion on the issue and around 5000 people walked Queen St to protest the government’s inaction in November.

From the outset Prime Minister John Key stated he would not heed the non-binding referendum results, which cost the taxpayers almost $9m in the middle of a global recession.

Key has repeatedly argued that parents who lightly smack their children will not be prosecuted by police, who have a discretion to use the law.

He is adamant the law, as it stands, is working.

Comments like these have raised further questions as to the effectiveness of the law, and the breach of the constitution which allows the Prime Minister to excuse people from laws without passing clear legislation to that effect.

Jim Evans, a professor of law at Auckland University argues Key’s assertion that police have a discretion not to prosecute parents is a breach of the rule of law which distinguishes the roles of the legislature and the judiciary.

Heather Roy, ACT Party minister says the law targets the wrong people. “Those who beat children to a pulp have never paid attention to the law and never will. The police have been told to use their discretion when complaints are made, but this makes a farce of the law. Laws must be clear, enforceable and regularly enforced to be effective.”

Family First spokesman Bob McCoskrie claims parents are being criminalised for hitting a child, regardless of whether prosecution results.

McCoskrie has repeatedly presented cases of normal parental activities which have gone through the court process.

Highlighting cases of minor instances where a seemingly nominal punishment has been prosecuted, the media created a fear frenzy.

However two years after the law was imposed, a review of the law was conducted by Police Commissioner Howard Broad, Social Development Ministry chief executive Peter Hughes and clinical psychologist Mr Latta.

Latta, a vocal opponent of the ‘anti-smacking’ law, was appointed by John Key in a very astute move to review the effectiveness of the law to date.

Along with the other reviewees, Latta researched cases highlighted by Family First of minor smacks being prosecuted.

Contrary to all his previous assertions the law was making good parents susceptible to criminal prosecution, he agreed the smacking campaigners were misled and weren’t given complete information on the people being prosecuted.

The review found no evidence police or welfare staff were reacting inappropriately.  Most people being prosecuted had a known history of violence or abuse.

It claimed the significant rise in the number of reported, apprehended and prosecuted cases of violent crimes doesn’t equate to an increase in unnecessary state intervention for parents who lightly smack.

Unfortunately while the debate continues on the rights of parents to use physical force to discipline their children, the unacceptable number of children being subjected to abuse is not declining.

The sad facts

Atrocious cases of children abuse regularly feature in the media: It seems almost weekly a new child abuse or homicide case arises and they are becoming so common the shock factor has been removed – despite what the little bodies have to bear before they are killed.

Gruesome details of inconceivable cruelty are regularly published.

National headlines have been dominated by toddlers, now household names due to their horrendous ‘non-accidental’ deaths:

• Three-month-olds Chris and Cru Kahui were bashed on their heads or their heads were smashed into something solid. They had broken ribs and one had a broken thigh bone before they received the injuries which killed them in 2006.

Someone is yet to be held accountable for their deaths. 

 • The torture inflicted on 3-year-old Nia Glassie in 2007 is incomprehensible. The toddler suffered continual abuse before her death, including being thrown against a wall, spun on a hot drier and hung on a clothesline and swung until she was hurtled off. 

• Eleven-week-old Tahani Mahomed died from brain injuries in December 2007. She had sustained other injuries and was so malnourished she hadn’t gained weight since she was born. Her father has been convicted of murder.

• A three-year-old boy is likely to require care for the rest of his life due to brain injuries inflicted by his mother with a shoe in 2008.

• In August this year three-year-old toddler Kash McKinnon died from head injuries.

These cases barely scratch the surface.

Around 18 children or more die from ‘non-accidental’ injuries in NZ each year.

And yet the ongoing smacking debate dominates media attention.

Ironically, while the country was inflamed over the criminalisation of a smack with almost $9m spent on the non-binding referendum, CYPS satellite offices around the country were shut down due to lack of funding.

According to its website, CYFS has legal powers to intervene to protect and help children who are being abused or neglected or who have problem behaviour.

Funds better utilised investigating child abuse and preventing its perpetuation were wasted voicing the outrage of parents wanting the right to assault their children without fear of prosecution.

The question still remains: what is being done to protect children from child abuse?

The prevalent issue of how to reduce the level of abuse endured by the most vulnerable people in society is still to be addressed.

In the meantime, NZ children continue to suffer.

Clinical psychologist Nigel Latta has vocally opposed the anti-smacking law in the past.  However after partaking in a review on how the legislation is working, he says parents can relax.  Read more of the TVNZ article. 

The New Zealand Aotearoa Adolescent Health and Development wrote: “Yesterday the host of The Politically Incorrect Parenting Show said none of the cases highlighted by the pro-smacking lobby to bolster their argument that good parents were being made into criminals for smacking stood up to scrutiny.” Read more

Key says smacking ok

Section59.blogspot,com questions the legality of John Key’s claim that smacking is ok under the anti-smacking legislation.  Read more

Following recommendations of a review of the law, parents being investigated for smacking can call a helpline to learn their rights.  Psychologist Nigel Latta, openly against the ‘anti-smacking’ law, found police and CYFS have dealt appropriately with child safety concerns raised stuff.co.nz reports.  Read more

Nigel Latta thinks smacking campaigners Family First have been misled when supporting parents it claims have been prosecuted for minor child discipline offences stuff.co.nz reports Read more

Protest for law change

Around 5000 people marched down Queen Street to protest the governments lack of response to the anti-smacking referendum Stuff.co.nz reports.  Read more

Almost one child in every 100,000 are murdered in New Zealand.  Social Welfare Minister Paula Bennett tells reporter Andrew Laxon how she plans to tackle the problem. Read more