HITTING CHILDREN – SECTION 59
The outdoor lifestyle, political stability, lack of terrorist threat and generally caring attitude of New Zealand provides an ideal environment for raising children. Many New Zealanders have returned recently from overseas because they want their children to grow up happy and confident, and free from fear.
It is true that the vast majority of our children live in loving homes that are free from violence. Sadly, that does not apply to all children in New Zealand. Some children are badly treated, and in the worst cases, the law has dealt with the adult offenders.
However, until 2007, parents and carers who inflicted violence on their children in the name of discipline were often able to do so without fear of prosecution because they were allowed to if the discipline was “reasonable in the circumstances”.
That all changed when The Crimes (substituted section 59) Amendment Act 2007 came into force in June 2007.
The new law brought New Zealand into line with many other countries that ban physical punishment of children. Children in some other countries are not so fortunate – punishment continues to be sanctioned in schools and homes.
The old section 59 provided a “statutory defence” – in effect an excuse – for parents or carers who were being prosecuted for assaulting a child. They could claim they were correcting a child’s behaviour. They had only to prove that the correction was “reasonable in the circumstances”.
The amendment took away that excuse. Children who are victims of assault can now expect be treated the same as adults in the eyes of the law.
The amended section 59 states:
“(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 the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a 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 proceeding with a prosecution.”
What this means is that any force used must not be for correction or punishment – it may only be for the purposes of restraint or, by way of example, to ensure compliance (s 59(1)(d)). It may be used to prevent or minimise harm to the child or another person, for example, to stop a child:
running across a busy road;
touching a hot stove;
inserting a metal object into a power point;
striking or assaulting another child or person with an object;
damaging or stealing property.
When the law was amended, Parliament expressly affirmed that for minor cases of assault against children, the Police would have discretion whether to prosecute where the offence was considered to be so inconsequential that there was no public interest in a prosecution.
The use of objects or weapons to smack a child, strikes around the head or kicking are not considered inconsequential. And while smacking might in some cases be considered inconsequential, a prosecution might be warranted if the smacking is repetitive or frequent, and other interventions or warnings to the offender have not stopped the smacking.
Police investigating cases where force is used against a child, as is the case with all assault investigations, consider the amount of force used in the circumstances, among other things, before making a decision about whether a prosecution is required.
In other words, for minor cases of assault against children, Police can use their discretion about arrest and prosecution – just as they do when an adult assaults another adult.
Many New Zealanders were concerned that the new law would allow prosecutions of people who lightly smacked a child occasionally. That has not happened. The cases that have been taken under the new law have been where the Police have considered the violence against children to be excessive or frequent.
Aiming to keep kids safe
Good parents – those who provide a caring and loving environment for their children – have nothing to fear from the law change. It will not make criminals out of parents who lightly smack their children or who use physical intervention to stop children hurting themselves or others. Despite the hysteria in some quarters, parents will not be (and have not been since the law changed) prosecuted for physically stopping children from causing a disturbance, or for picking them up and putting them in their room to “chill out”.
For good parents, it’s business as usual.
The new legislation is aimed not at penalising caring parents, but at keeping kids in our country safe by reducing the violence against them. It is one part of a strategy that must stop the woeful record of family violence in New Zealand.
Violence is not an effective form of child discipline. The effects can have far-reaching consequences for our children, and for their future as adults. There are alternatives to hitting as a form of correction (see elsewhere in this booklet, and see the Help with Effective Parenting section at the back to access more information).
The Children’s Commissioner says the law sets a standard that is consistent with what we know about helping children to behave well and with the goals of child discipline.
In an excellent booklet called Choose to Hug, the Office of the Commissioner for Children says that research shows it takes time for children to learn how to behave in socially acceptable ways.
One of the goals of raising a child is to make behaving well something a child chooses to do because it is part of who they are, rather than something done because they fear punishment.
It is about learning self-discipline, the Choose to Hug booklet says.
Indeed, learning self-discipline extends through adolescence and even into adulthood. There are many things a parent can do to help this process – positive actions that help the child feel safe, loved and guided.
Smacking and hitting are not part of these actions.
Smacking children sometimes works in the short-term, but it does not contribute to a child developing self-discipline.
“When we discipline children we are often trying to get the child to behave well in the short term (for example, to stop kicking the cat) and of course that matters,” Choose to Hug says. “But we should not forget that our ultimate goal is a long-term one. We want children to develop self-discipline and to grow up to be caring, confident and respectful people (who avoid hurting animals because they know it is wrong and they care about animals).”
New Zealand should be known as a place where “hitting is not OK” – and that applies equally to children as it does to adults.
LEADING BY EXAMPLE
What we see in the mirror is what we can expect our children to be. Is the person we see angry, stressed, depressed or tired? Do we talk to our children, give them our time and love, and look after ourselves?
What we are is what our children can become, because our children learn behaviour from us. If we hit our children, they are likely to hit their children. Children who live in abusive families are more likely to be aggressive and violent.
We can break the cycle by changing the way we act and react with our children. Our own behaviour can give them positive messages that reinforce their confidence and self worth, and it is more likely they will continue those positive messages with their children.
Hitting does not work
In New Zealand, hitting a child is still seen by many parents as a legitimate part of parenting. The recent amendment to section 59 of the Crimes Act removed the defence of “reasonable force” for people who disciplined their children by hitting them.
The law does not allow adults to hit each other, it does not allow teachers or others outside the family to hit children, and now children are also protected from hitting within the family.
Some groups have actively encouraged hitting as a form of discipline for children, with one group suggesting that children aged seven could safely receive spankings up to 30 times a day with a leather strap.
The Office of the Children’s Commissioner says no matter how hard it gets, it’s never OK to hit children. The commissioner argues that children should have the same protection and dignity as other people in the community. Using physical force teaches children that it is OK to use violence to solve an argument, show anger or influence others.
The Office of the Children’s Commissioner, the Child, Youth and Family Service and many parenting and support agencies have plenty of pamphlets and videos that provide practical alternatives to help you resolve tense situations and encourage good behaviour in your children.