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    Section 59 Cases

    By HEF Admin | October 7, 2006


    Riding Crop Case

    Open letter to the Prime Minister from the Timaru lady:
    http://familyintegrity.blogspot.com/2007/03/open-letter-to-prime-minister-from.html

    YouTube part 1:
    http://familyintegrity.blogspot.com/2007/03/criminalising-parents-nz-style-timaru_10.html

    YouTube part 2:
    http://familyintegrity.blogspot.com/2007/03/criminalising-parents-nz-style-timaru.html

    Larry Baldock CIR update 5:
    “In the now famous case of the Timaru woman who used the ‘horse whip’ (riding crop which means a piece of leather much like a strap.) the young boy had tried to hit his step father in the head with a baseball bat. Now in a few more years the boy would find out that such action would result in a criminal offence and probably result in a jail sentence especially if the step father had not managed to deflect the blow. At 13 however he is not subject to the Crimes Act in the same way as adult, so the responsibility fell upon his mother to correct him, which it seems, according to the jury who heard all the facts, she did reasonably. According to the recent media reports she still does not have her son back from CYFS, despite being acquitted.”

    From Barbara Smith’s Submission to the Select Committee:
    http://www.FamilyIntegrity.org.nz/page/865552

    Hi Barbara, please feel free to use this (Appendix A) if you like.. it may be good to add the following:

    The state solution to produce good behaviour is to medicate my son, with RISPERDAL. (Check out the side effects of this. You will be shocked. This drug has been banned for use on children in the states because of its side effects) but the state insists that he take this every day to modify his behaviour.

    Funny when a smack on the bottom which has no long term side effects sufficed to bring about a change in behaviour for the better.

    State ideals-
    remove child from secure and happy family environment and medicate the child till he is a zombie..

    Parental ideals-
    give a smack on the clothed bottom if necessary and have a happy … balanced child!!

    Which scenario truly represents abuse??? HMMM.

    My son is now permanently emotionally scarred not from the discipline but from the trauma of being removed from his family who love him and he loves.

    THE STATE is abusing my son and I can do nothing to stop this. How may other parents will face the same if s59 is repealed?? The state is undermining parental authority.

    Appendix A
    Hi Barbara,
    I am the woman who disciplined her son by using a cane and a riding crop. the following is a copy of an interview with Bob Mc Coskrie on Radio Rhema. Please feel free to forward this to anyone you wish who may be able to make use of this, or you may publish it on your website. just please do not publish my name.. kind regards ……………………………….
    What were the circumstances that led to the charges?
    I have five children and have spent much of the past fifteen parenting alone, though I have recently married a loving Christian man. Trying to juggle on my own between holding down a full time management position and home life and parenting was not an easy task.
    My son had a medical condition as a young child which prevented him from receiving the normal smacks on the bottom a naughty toddler would receive from a loving parent.
    What was the medical condition your son had?
    My son had a transient form of Oesteogenesis Imperfecta, a type of brittle bone disease, which affected the collagen structure of the bones for first years of his life. This has no effect on him now.
    My son therefore has had behavioural problems for a number of years.
    These were exacerbated by him playing off his well meaning Grandmother, who lived close by, against myself. She unwittingly supported his bad behaviour through negative rather than supportive intervention.
    For example if i gave the child time out by putting him in his room when he had been abusive to one of his siblings he would jump out the window and run to her house which was close by, telling her only what suited him and she would arrive on the doorstep and verbally abuse me for putting him in his room without even taking the time to find out what had preceded this.
    If I tried to tell her, or the other children tried to tell her she would make excuses for his behaviour. This led to a boy who became very difficult to control.
    Late last year I was working in conjunction with the school and a psychologist through some plans to assist with managing my sons behavioural problems.
    It is of note that my other children are all relatively well behaved , displaying what I would describe as normal childhood naughtiness
    Tell us about the incident with your son
    I had a call from the school to tell me that my son had deliberately kicked a hole in a toilet entrance door. There were two entrance doors to this particular cloakroom, one was always open and the other locked. Although it was only two meters to walk to the unlocked door my son and another child saw fit to kick the locked door until it opened.
    If you recall, school doors they are big, heavy things and it would take some considerable and deliberate force to kick a hole through one of these wearing only school shoes.
    What was the date you were called to the school and how old was your son at that time?
    My son was twelve years old. I think it was 22 October 2004.
    My son refused to carry out the schools discipline. The deputy principal told me when she called me he had sworn at her when she attempted to get him to write the school rules. She sent him out to the front gate of the school for me to pick him up to take him home to discipline him.
    On the way home from the school I talked to my son about his behaviour and told him it was not acceptable and that I expected him to behave properly and respectfully at school. I told my son that I loved him and that because of his very bad behaviour I had to discipline him. I bent him over the table and gave him six whacks on his trousered bottom with a small bamboo cane.
    Could you describe a little more the small bamboo cane?
    It is about the thickness of my little finger and between 12 and 18 inches in length. The type you use to stake a small pot plant.
    What happened then?
    He apologised for his behaviour and I reassured him that I loved him but disliked the behaviour. He told me he wouldn’t behave like this again and we I then took him back to school, where he complied with what was required of him there.
    What was the reaction of your husband?
    My new husband had a generally good relationship with my son. He had been a “buddy” for him appointed by the family to get alongside the boy for outings and companionship and to enable me to have some respite. It was though his contact with my son that our relationship began. My husband has a closed head injury from an accident some years ago.
    Then what happened?
    About two weeks after the school incident my son was asked to assist my husband bringing in firewood for the night. He took exception to this simple request and did not respond well to my husbands encouragement to help. He picked up a baseball bat and swung it full force at my husbands head screaming that he would give him permanent head injuries. Fortunately my husband was able to block the blow and disarm the boy. If my husband had not seen the baseball bat coming, the consequences could have been dire, as the impact to his head could have seriously maimed him or even killed him.
    I felt I needed to discipline my son for this severe behaviour and looked for the cane, but could not find it. I saw the riding crop close by and thought that will give him a short sharp sting and then administered discipline with that.
    Could you describe a little more the riding crop?
    It is about 18 inches long and approximately as thick as my little finger with a rubber handle at one end, and a small leather flap at the other end that is about half an inch wide and one and a half inches long.
    Why didn’t you use your hand?
    I had spent some time praying about my sons behaviour and read through scripture and felt as a result of that that I had a responsibility to pull my son back into line quickly and effectively before he got into more serious trouble, in a manner which dealt with it on the spot instead of a punishment which dragged on and even showed a lack of forgiveness. I felt his behaviour called for something more than a smack on the bottom.
    ( Bear in mind if he had done either of these things as an adult he would have been likely put in prison. I think if any prisoner was asked if they would prefer a whack on the bottom with a cane or a crop to his sentence he would gladly agree to the discipline)
    The cane and crop both give a short sharp stinging sensation which is memorable but not injurious. I have tried this on myself. The discipline was entirely controlled, over with very quickly and was very effective. AFTERWARDS he gave me a hug and apologised.
    What was the effect of the discipline?
    FROM this point on the boys behaviour changed radically for the better. We had a happy laughing cheerful child who was obedient and a pleasure to have around.
    We had regular monthly meetings at the school to discuss my sons behaviours and progress with a social worker from special education services and attended that months meeting as was planned.
    The deputy principal opened the meeting by saying there had been a huge improvement in my sons behaviour at school and asked how things were at home. We told her we had experienced the same.
    The SES worker then asked what we thought had bought about this change for the better and I told him about the incidences of the discipline. This do gooder went purple and nearly fell of his seat. He told me I was not allowed to discipline in this manner, that it was against the law even to smack.
    I told him he was wrong, that there was no law against this and that the discipline had worked. I said that my Christian beliefs supported my actions.
    Even though the school acknowledged the radical change for the better in my sons behaviour this do gooder contacted CYFS.
    Two social workers from CYFS arrived AT MY PLACE OF WORK, some two weeks later and in a very high handed and officious manner insisted on “interviewing” me in front of my staff and members of the public , telling me I was abusing my child. They clearly had made up their minds that this was the case before even talking to me.
    They refused to leave my workplace, even though I was due to finish in an hour, and told them I would be happy to discuss this with them at home after work. They kept on insisting that it was against the law to hit a child, including smacking, and quoted violence begets violence.
    I told them that my behaviour was controlled and appropriate for the situation, and their interview in my workplace was not appropriate. When they refused to leave, I left work myself and drove away as I was managing a tourist attraction and it was entirely inappropriate for them to even attempt to conduct an interview there.
    The socialworkers took exception to my abrupt ending of their power trip and rang the police. They filed to the family court, without even investigating fully the circumstances of discipline and with out offering the family any support , an exparte order seeking interim custody for my son, on the grounds that he was being physically abused.
    The exparte order meant we were not even informed they were doing this and we had no right of reply to defend it.
    The court awarded CYFS interim custody of my son, based on the hearsay of one social worker alone and without calling evidence to substantiate the social workers claim.
    The department then uplifted my son, maintaining abuse, and the social worker set on a path of character assassination of me because, I believe, I offended him by refusing to discuss the matter in my workplace or back down and admit abuse (which of course had not occurred).
    The social worker then set on a campaign to get the police to prosecute me in order to bolster his claims of abuse. The Police came and interviewed me and it was clear to me during the interview that the police officer was supportive of my actions.
    When were charges laid?
    Charges were not laid for some five months after the interview and as I understand were laid with a great deal of reluctance and under pressure from CYFS.
    When the Police officer bought me the summons he was apologetic and he told me about section 59 and how it allowed for reasonable force in the circumstances. He suggested to me that I had a defence under this section.
    Why do you think you were acquitted
    I did not give evidence at the trial and called no evidence in my defence. The prosecution witnesses clearly showed in their evidence, that this was a boy who was exhibiting extreme and irrational behaviour and needed to be quickly bought into line.
    Why did you not give evidence at the trial or call evidence? did you have a lawyer?
    Yes I did have a lawyer. He cross examined the prosecution witnesses over the course of the trial. As their evidence was very compelling that this was a boy out of control in his behaviour and that the discipline was controlled and effective there was no need for me to give evidence. The jury decided the case based on the evidence provided by the prosecution alone.
    The evidence presented by the prosecution showed that the boys behaviour changed for the better after the discipline.
    The jury clearly thought that UNDER the circumstances presented BY the prosecution, the boys behaviour was out of control and the discipline which bought him quickly into line was reasonable.
    The jury had people from all walks of life including grandparents, professional people, mums, dads and even a school teacher. They reached their unanimous decision within an hour.
    What are the media not reporting OR distorting about the facts of the case?
    The media immediately picked up on this and threw a negative slant in their news coverage. labelling this abuse even though it was proven not to be.
    The media has downplayed my sons radical outrageous behaviour and has focussed on the method of discipline for such as having been inappropriate the circumstances, irrespective of the circumstances which led to this discipline and the fact of the jury finding it not to be an assault.
    Some members of the media have openly verbally attacked the jury and their decision, but only the jury and those in the court room saw the case presented as a whole and their juries decision was reached upon all the relevant information the PROSECUTION presented.
    Was there physical harm to your son as a result of the cane?
    It has been said in the media the discipline produced welts on the boys legs. The evidence in the court described a mark on my sons upper leg as a small linear red mark, from the use of the cane which was not apparent when checked again. This is hugely different from a welt. There was no evidence of any marks from the riding crop.
    I thought it was reported as a horse whip?
    The media has changed the term riding crop to a horse whip. Horse whip conjures up visions of a long stock type whip, where in fact a riding crop is a small item, about 18 inches long and is designed to give a short sharp sting with no seen physical effects. Even though the evidence showed to the contrary, the media have claimed this was a beating. The discipline was controlled and effective.
    Some of the media have also espoused views held by my 19 year old son who is now living away from home. He holds anti smacking views. Many of the things he has claimed are distortions of the truth, inconsistent with fact and widely exaggerated. My eldest son was not part of the court proceedings. The trial by media which followed the court decision, was based on his unsubstantiated claims and has lacked balance and truth to say the least. If what he said was of any relevance to the prosecution in this case I am sure he would have been called by the crown prosecutor to give evidence.
    Your 19 year old son holds anti-smacking views. Why?
    I have had two previous marriages which were both extremely violent. My first husband kicked our small dog in the head popping its eye out of the socket and later stood on the childrens kittens tail and tried to rip its head off. He was convicted in court on this cruelty. He was also very violent to myself and our children, and on one occasion when I put the children in the car and tried to escape he punched the car windows in shattering glass over the children and me. CYFS (or welfare as it was then) assisted me and the children in relocating to another town to flee his violence. My second husband, who was mentally ill ( a fact I didn’t know of when we married ), went to prison for attempting grievous bodily harm on myself and my daughter where he attacked us with a knife and then kicked into my head repeatedly with steel capped work boots and assaulting the other children. I left him in 1996 when he was imprisoned after living with him for not more than 10 months of our married life because of his ongoing violence, (we married in 1994) and I divorced him in 1999.
    I attended a women’s course in 2000 to help break the cycle of family violence and in particular the choices women make in partners and why, and this was a life altering experience. I learned to recognise the character qualities in men who are violent and seeing those I was subsequently able to make more positive choices. As I went through the course I realised that I had suffered from battered woman’s syndrome.
    Renewing my faith has greatly strengthened me and changed my attitudes and self image and has bought me the wonderful, loving, non violent Christian man I am married to now.
    It is fair to say that my eldest son witnessed a lot of things a child should never have to and holds me entirely to blame for this. He has gone as far as to falsely accuse me of some of the things my ex-husbands did.
    Our family has had to go through a healing process as a whole and this process if far from complete for my eldest son, whom often felt responsible in some way, even though I reassured him it wasn’t his fault and there was nothing he could have done.
    I feel that because he has witnessed violence to the extent he has, and the violence he was subjected to by my ex husbands, that he taken the view that any hitting of any kind constitutes violence.
    My eldest son and I had a falling out over me not approving of him spending school nights at his girlfriends at the age of 16, and me feeling that her influence was less than positive on him, and his reckless driving of the car I had bought him. Despite numerous approaches from myself seeking conciliation and healing he has pursued a path of hate and blame which deeply saddens me, because all though there were bad times with my ex husbands there were many many good times after I had removed us all from those situations.
    My other children’s attitudes are very different from his. I have excellent relationships with all of them, and we are free and able to talk about all manner of things. My 18 year old daughter describes me as her very best friend, but also respects me as her Mum. She is a mature and responsible young woman who holds down a responsible job.
    Was he smacked?
    Yes my eldest son was smacked by me and only if his behaviour warranted it. The discipline he received from me was either non physical or was with a smack of the hand on the bottom or on the hand with a what we called a smacking spoon. Generally speaking he was a good boy. When he was 15 or 16 he had bullied one of the younger children and was rude to me when I told him not to. I gave him the choice of discipline, either a smack or grounding and he chose the smack cos it was over and done with quickly.
    What other methods of discipline have you used?
    I have always used a number of methods to discipline my children which have included a warning, an apology, time out, loss of privilege, and smacking. This depended on the nature of what had occurred. I only ever had used a cane or a riding crop to bring into line very extreme behaviour and it worked when nothing else did. The media has branded me a violent angry uncaring woman who should be whipped herself. To the contrary, I love my children and want them to become responsible adults whose life reflects personal discipline and respect for others.
    The mainstream media say that my behaviour was unreasonable and abuse irrespective of the court decision. I say to them they do not know my son or his behaviour or even the full circumstances and are not in a position to judge. This was not normal childhood naughtiness, it was outrageous over the top behaviour, and I would further challenge those who have said this that given the same circumstances they would definitely discipline along similar lines.
    The commissioner for children has become involved and is relying on the above mentioned distortions of truth in mainstream media as being fact, in this case, to push for the repealing of section 59. I wonder if the commissioner has children of her own, and if so how does she discipline them?
    What have been your dealings with CYFS
    Cyfs have failed to offer constructive support for a badly behaved child in his family situation. When I asked the social worker if there were any effective alternatives to the wide variety of methods I have used to modify my sons behaviour, both physical and non physical , he could offer NO ALTERNATIVES, but still told me what I was doing was wrong, even though it had been effective!! The social worker told me it was not his role to provide me with this type of information. Neither did he have any literature to recommend to assist with alternative methods suitable to CYFS to address my sons behavioural problems.
    I have found CYFS to be highhanded in their dealings, having a particular mindset and a zeal to prove abuse even if it has not occurred, which they will look neither to the left nor right from.
    Even though the court of law has ruled an assault did not occur, CYFS are refusing to return my son to me on the grounds he was assaulted. Even though I have given them an undertaking (against my beliefs and in an effort to have my son returned home where he wants to be), not to discipline him in this matter again they are refusing to return him because they maintain he is likely to be abused, as at one point I said I would simply smack his bottom instead with my hand if he needed it .
    Do all CYFS workers operate on this policy
    I have spoken to four different CYFS social workers about smacking and they all hold and maintain the belief that it is against the law to smack children. That smacking constitutes violence and violence begets violence (their favourite quote). I have been told it is their POLICY to REMOVE children from the care of parents who smack to discipline. They will not advocate smacking in any form. I have pointed out that this is contrary to the law which allows for reasonable physical discipline and have been told that this is not relevant, that the department has an anti smacking policy and maintains the right to uplift and hold children who are being disciplined this way.
    The implication of this is that their policies are ABOVE the law and that they have exclusive right to make law for their department irrespective of the law of the land.
    Because I offended the socialworker initially by walking out on the interview he tried to conduct at my workplace, he has begun a personal witch hunt and character assassination which has become far removed from the issue at hand which is the interests of my son and his right to be reunited with his family who ,irrespective of his behaviour, love him.
    The social worker has twisted and distorted comments made by family members to suit his own agenda. He has even on occasion deliberately lied even claiming my son had said things when he interviewing him which my Son was very clear that he had not said.
    It is also of interest that he carried out an interview with my son without my knowledge and without offering him any adult support- which is in direct breach of the act.
    This social worker has put an application before the court for a declaration in respect of two of my other children on the grounds that they “could be at risk of being abused” even though these children and family members have made it clear that this is not the case.
    We were all very excited when I won the court case because CYFS had indicated my son would be returned if I won. My son was looking forward to coming home, and we had made lots of plans.
    After we won the court case the social worker rang the care giver and told him my son was not allowed to come home with me and I was not to be picking him up. He further told the caregiver I was not allowed to see my son.
    He also as recently as last week physically tried to prevent my son from talking to me on the phone by trying to snatch away the phone as it was passed by my sons caregiver to my son. I over heard him yelling “I SAID NO”. This action frightened my son so much that he subsequently ran away from the social worker and rang me from a house where he felt safe. The person who owned the house described him as obviously frightened and crying.
    The social worker has denied me access to my son, without having a court order to support this, and even though I have had extended unsupervised access to him previously this year, which have included him staying with us for several days at a time and not wishing to return to his caregiver.
    This social worker has used untrue allegations made by an extremely violent and abusive ex husband, from whom the department helped me shift some 15 years ago, against me, in his affidavits to the family court.
    The social worker has even stated at one point that I am an evil woman because I stood with my hands on my hips and glared at him. Am I expected to be pleasant smiling and happy because he has wrongfully removed my son from my care? Get real.
    The social worker has also told my son that I broke the law disciplining him the way I did. This has not only undermined my parenting in front of my son but it has caused a lot of confusion to my son.
    Where is your boy now?
    My now 13 year old son is living with a relative
    Have you had any other involvement with CYFS
    What is truly interesting is that I have provided respite care a CYFS client in 1992, I was appointed by CYFS to supervise access for a family friend in 1997, and have had two 17 year old youths who were under CYFS supervision boarding with me in 1999 and 2003 with the permission of their respective social workers. This hardly would have happened if CYFS felt I was in any way abusive.
    Have you done any work for cyfs since 2003?
    No and I need to clarify that I was not employed by them, but rather approved by the social workers involved in the individual cases to take care of or supervise these other children and young people.
    What was the family court system like?
    The family court system is farcical to say the least. The words of social workers are taken as completely true and the family court always supports CYFS in their exparte applications for interim custody and children are subsequently removed from their homes on suspicion alone. Many children remain in CYFS custody for years because the parents do know how to fight the system or run out of finances to do so, or give up because they can no longer cope with the huge stress of dealing with CYFS and the wiles of the all to powerful social workers.
    When CYFS take a matter to the family court they seek what is called an application for declaration and a family group conference is called for. The declaration for care and protection they seek and the way it is worded at a family group conference it could relate to any child in any given situation in the country and misrepresents the true meaning of the declaration.
    Why did you agree to the declaration?
    We were bullied into agreeing to the declaration by being told that if we didn’t agree the court process would be drawn out for years during which time my son would be kept in CYFS care.
    What have been the costs?
    We have had to fight a costly battle, both emotionally and financially, for my children and have only an average chance of succeeding because even though the court of law shows abuse did not occur, because too much weight is placed by the family court on the OPINION of the social worker even if it is not reasonably held. Too bad the one we have does not like me- and this is so often what it boils down to.
    So far this fight has cost about $10,000 and it is still not over.
    What does your son say about all this?
    My son is begging CYFS and his family court lawyer to come home (this surely would not be the case if he considered himself abused?) and we are begging to have him here and they refuse outright saying that the family court process must follow through.
    LAW HAS SAID AND A JURY HAS FOUND I HAVE NOT DONE WRONG AND THEREFORE IT FOLLOWS MY SON MUST BE RETURNED HOME. CYFS should have withdrawn their applications immediately upon the ruling of the jury and they have not. They should have retuned my son home and they have not. How can this be? CYFS are flouting the law in doing this.
    Nothing has been done at all to strengthen this family. CYFS have failed to uphold their mission statement. “Strengthening Families” is baloney.
    Do you know of other families in similar circumstances?
    I have personal knowledge of another local family where the husband was accused of abuse by CYFS, He was ordered out of the house by CYFS. As I understand the situation, CyFS insisted on charges being laid and the police withdrew the charges through lack of evidence, but even so, this family is still fighting in family court for custody of their daughter and restoration of their family. Their social worker, who is not the same one as our case gone on a personal mission to prove abuse when it has not occurred. Something has to be done to stop power hungry social workers in CYFS from dividing and separating families rather than supporting them und upholding the family unit.
    Where to from here?
    I will continue to fight for my son through the system.. could listeners please pray for a release of finances to cover legal costs so far…and for a sensible decision in the family court and the restoration of the family.
    I will also fight to draw attention to the unfairness and unlawful actions of CYFS workers who operate above the law. The purpose of CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT 1989 says in its primary objectives that the act is intended to (a) To advance the wellbeing of families and the wellbeing of children and young persons as members of families, whanau, hapu, iwi, and family groups. and (b To make provision for families, whanau, hapu, iwi, and family groups to receive assistance in caring for their children and young persons.
    This is not happening in our society.
    According to what CYFS social workers have told me CHILDREN ARE ALREADY being removed from their families because parents have smacked them or might smack them. The average New Zealander is not aware of this and awareness of such needs to raised as CYFS is operating ABOVE the law. Their actions in removing children in such a manner definitely do nothing to promote the wellbeing of the family and the children.
    It is important that the parents right to smack is upheld.
    No child has ever been permanently maimed or injured ,to my knowledge, from a smack on the buttocks or indeed from a cane across the buttocks. Children who are undisciplined grow into undisciplined adults.
    The USA have discouraged physical Discipline for a number of years now and all this has served to raise a generation of young people who push their boundaries to the extent that we regularly hear of schools and churches rampaged by young people wielding weapons and going on killing sprees. Dr Benjamin Spock who promoted anti smacking thinking. his own son is reported to have committed suicide.
    In Great Britain smacking has been discouraged and the result of such is programmes like Little Angels which is currently screening on television one where the children are absolutely out of control.
    The studies of Sweden which have been well aired on Rhema recently show the anti smacking law there has failed.
    In Australia where smacking is now frowned upon the rate of criminal activity amongst children and youth is skyrocketing. Dr Christopher Green who wrote about his non physical theories for “toddler taming” had no children at the time he wrote this and yet his work is esteemed in an anti smacking society as being positive parenting.
    We as a nation must stand up against what is happening in this country. We should not let the unsubstantiated opinions of MINORITY groups be pushed into our law books.
    I remember sitting in on a court hearing once relatively recently where a youth had gone on a rampage smashing car windows and the judge spoke to both him and his father who was attending. He said “Young man you lack discipline, and If you were my son I know what I would be taking you home to do right now and I suggest your father does this!”
    What do you think of s59 allowing reasonable force in discipline?
    I want to actively encourage parents to call for a public referendum on the repealing of section 59, I believe the section needs to be defined not repealed. I believe that this section is being wrongfully used in some circumstances, ie a beating with a four by two or a chain, punching or hitting around the head is not in my view reasonable. Controlled discipline using a smack on the bottom, a cane or similar or a leather strap administered to the hand or buttocks can be entirely appropriate in a given situation.
    Repealing section 59 will mean that even a simply hug offered to an unwilling child constitutes assault, as will a gentle shove towards the bedroom when the child doesn’t want to go, a smack on the bottom will be a chargeable offence and parents can and will be charged with assault for such and their children will be removed from their care.
    I will defend a parents right to reasonably discipline their child through the writing of letters, emails, etc .
    I would like to encourage all listeners who believe that loving reasonable physical discipline is the right and Godly thing to do to write to their MPs and further to all members of cabinet ( their email addys are available on www.govt.nz) calling for a referendum.
    I also respectfully suggest that our Prime Minister, as good as her intentions may be, is not a parent and therefore not in a position to make a fully qualified decision about what is appropriate parenting behaviour. I would also be interested in knowing whether Sue Bradford ever smacked any of her five children.
    Were either Ms Clark or Ms Bradford or any of the other politicians who help make our laws smacked on the hand or the bottom as a child? Did any get a whack with a cane or strap at home or school? Did this permanently impair them in any way or make them an unbalanced or violent adult? (side note not part of interview- maybe you could poll the politicians asking them this Bob???)
    If we remove discipline from our society moral integrity and respect for others will disappear.
    This fight is not one of flesh but of principalities and powers and it is time for the Christian nation to rise up and say enough! Stop this madness.
    I have been praying against the spirit of apathy which has been over many Christian people in this nation who even though they see the wrongs taking place in this country do not rise up and take action against them. I will pray for families to be strengthened and for govt departments like CYFS to work to strengthen them. I will pray for a move of God on the hearts of our nation to reveal truth and highlight the folly of the nations ways.
    I pray daily for my family that it will be restored and that all those who have been involved in this case in any way at all will be blessed and will come to know God and gain salvation through his Son.
    I would like to encourage listeners to do the same and after praying, start writing letters, get on the phone, email and contact newspapers, television and our political leaders calling for a referendum on section 59, opposing the repealing of such and upholding a definition of reasonable force. If listeners believe smacking is an effective and appropriate discipline stand up now and be counted before it is too late.


    From Maxim’s written submission to the Select committee

    http://www.maxim.org.nz/files/pdf/submission_crimesamendmentbill.pdf

    (For the rest of the Maxim written submission click on the link above. To see the notes for this click on the link above.)

    THE PROBLEM OF INCONSISTENT APPLICATION/MISAPPLICATION OF SECTION 59

    86. Advocates of repeal of section 59 often argue that the provision should be repealed because it leads to inconsistent and contradictory results, and a particular problem seems to be perceived with some jury verdicts.84 There are a number of points that need to be made in response.
    87. Firstly, the perceived inconsistency may be more apparent than real. Judges have established a set of principles applicable to such cases which is generally very consistent. To the extent that results differ in different cases, this is likely to reflect the reality that the factual matrix in every case will be different, so that differing amounts of weight should be given to the same factor in different cases. This makes simplistic comparisons, focusing only on one common factor, dangerous. Thus, for example, a common factor such as smacking, may in one case be protected by section 59 (as in Re M (children)85) and not protected in another (as in R v Donselaar86). These results are not inconsistent when the degree of force used is taken into account.
    88. Secondly, it is very difficult to know exactly why a jury reaches its decisions.
    This is particularly the case when an acquittal is given and no appeal is lodged. In that case, there is likely to be no document produced that records the evidence placed before the jury and on which its decision may have been based. When an accused is convicted, there will at least be the presiding judge’s sentencing remarks to give an idea of the possible basis of the jury’s decision, and the weight that the judge saw fit to give to various factual elements in imposing sentence. However, the opacity of jury verdicts means we should be very cautious before querying a jury’s decision, as we will not often have access to the same information that the jury did in reaching its verdict. It should also suggest extreme caution in relying on media reports of jury trials.
    89. Thirdly, we should not lightly attack the jury system. For centuries, the jury system has been a leading characteristic of common law criminal procedure.
    It has great value in maintaining public confidence, and public interest, in the administration of the criminal law. It has great symbolic value as a cherished constitutional safeguard.87 Its importance is recognised by the provision, in section 361A of the Act, of jury trials as the normal mode of criminal trial. It should be noted that in section five of this submission, Maxim Institute does stipulate its support for an amendment to ensure that where no reasonably instructed jury could find the accused to have been reasonably justified in his or her application of force, the Court would be required to direct a conviction.
    90. Fourthly, the perceived problem of inconsistency and uncertainty is inherent in the application of any law to complex fact situations. As the Supreme Court of Canada has noted:88
    Legislators can never foresee all the situations that may arise, and if they did, could not practically set them all out.
    It is thus in the nature of our legal system that areas of uncertainty exist and that judges clarify and augment the law on a case-by-case basis.19
    91. Even if there were some merit in the argument about inconsistency and uncertainty, the remarks of the Supreme Court of Canada are again highly relevant:89
    However, ‘[t]he fact that a particular legislative term is open to varying interpretations by the courts is not fatal’. … The issue is not whether [the equivalent Canadian provision]has provided enough guidance in the past, but whether it expresses a standard that can be given a core meaning in tune with contemporary consensus.
    The fact that borderline cases may be anticipated is not fatal … ‘[I]t is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made. Guidance, not direction, of conduct is a more realistic objective.’
    92. As the Supreme Court’s judgment suggests, there will always be borderline cases where reasonable people may reasonably disagree about the verdict given in a particular case. It must be accepted that this will inevitably be the case; that is the nature of decision-making. The existence of decisions or verdicts about which reasonable people may not agree, whether convictions or acquittals, is therefore not a reason to repeal section 59, where the repeal has the potential for negative consequences for parents and families and would introduce unworkable law.

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