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he Parental Use of Physical Discipline in New Zealand – Part 1

The Parental Use of Physical Discipline in New Zealand(Part I)
by Robert van Wichen, LLB

Introduction
If I asked you “Is it legal to smack your child?,” how would you answer? “Yes,” or “No” … or after scratching your head for a while, “I don’t know.” The last answer is becoming increasingly common, with more and more parents wondering if they really are allowed to use force to correct their children. As a consequence some no longer dare to smack their children; others, believing it to be illegal, do so secretly. This article aims to answer that question.

The starting point is section 59(1) of the Crimes Act 1961 which states:
..Every parent of a child and … every person in place of a 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 word “justified” is important. It is defined in section 2(1) of the Crimes Act as meaning, “not guilty of any offence and not liable to any civil proceeding.” The expression “offence” is defined as meaning “any act or omission for which anyone can be punished under this Act or under any other enactment.” Judge Inglis summed it up simply:
..The effect of section 59 therefore is that a parent or a person in the place of a parent may lawfully use force by way of correction towards any child in his or her care, and provided the force is reasonable in the circumstances, is immune from prosecution or civil liability.(1)

J L Caldwell in his article titled “Parental Physical Punishment and the Law”(2) affirms that section 59 provides specific statutory protection not only against criminal prosecutions for child assault (and other charges), but also against civil liability arising … section 59 does no more than codify the well-established common law defence … If, then, the privilege of physical punishment is to be definitively removed from parents, this must be done by way of specific statutory proscription.(3)

The prevalence of physical discipline, in contrast to the relatively few court cases in which parents have been convicted for having used it, is anecdotal evidence of its legitimacy.

It is clearly permissible to use reasonable force to correct a child, and it is irrelevant that some in our society would outlaw completely the physical discipline of children given the opportunity.

However, a parent must satisfy two tests before section 59 is available as a defence. First, the force used must be “by way of correction.” Secondly, the force must be “reasonable in the circumstances”.

I. Force by Way of Correction
The state of mind of a parent whilst inflicting force will determine whether the act of force is a lawful act of “correction” protected by section 59 or an unlawful act possibly resulting in criminal proceedings under the Crimes Act,4 proceedings under the Children, Young Persons and Their Families Act, or proceedings pursuant to the Domestic Violence Act.

From various cases in which parental discipline was considered, it appears that the following factors will be considered in determining the parent’s state of mind and in particular, whether force used was by way of correction:

1. The relationship between the parent and child. The Court of Appeal in R v Drake(5) held that the nature of a parent’s relationship to a child is relevant to determining whether the force used was to correct the child, or for example was motivated by vindictiveness. Justice Edwards said it well:
..The self-same act may be either an obviously just act of parental correction or an act of revenge, and it may be quite impossible, without going into the whole relationship of the parties and the state of mind of the party administering the punishment to determine which of the two it is.(6)

And later in the same judgment, Justice Denniston stated “…a jury … might be inclined to allow for an honest error of judgment in the case of a parent whom they believed to have been doing what seemed best for the child.”

2. The parent’s state of mind at the time that the child was corrected. Even if the act of force should at first sight appear reasonable, it will be held unlawful if it has arisen out of “spite, rage, fury, anger or ill-will”(7) or if the parent has acted capriciously or arbitrarily.(8) However as one judge said, “It is unrealistic to assume that parents discipline their children, whatever the nature of the infraction, in a state of detached calm. Anger is part and parcel of the correction of a child. What is relevant is not whether the parent is upset, distraught, frustrated, annoyed or angry, but whether the parent is in control of his or her anger or emotions.”(9) What is germane is that the parent used the force to correct the child. An assessment of a parent’s state of mind will necessarily require a parent to explain why force was used and may involve consideration of the parent’s beliefs and views about child rearing, and his or her background (including culture).

3. That what the child did was wrong or dangerous and warranted physical punishment. If there is nothing to correct, then obviously the force was not used for the purpose of correction. So if the child had not done wrong but simply had irritated the parent then it is not open to a parent to use physical discipline.

4. Whether the parent has clear and reasonable boundaries and the child was aware in advance of those boundaries, and the consequences of disobedience.

5. Unreasonable force may indicate that it was not for the purpose of correction, and the more unreasonable the force, the more likely that it was not for the purpose of correction. In R v Drake a mother had been convicted of manslaughter of her eight-year-old daughter. On appeal it was argued that the force was by way of correction and that certain evidence should not have been admitted at the trial, including evidence of the mother’s relationship with her daughter. However as Justice Denniston said:
..the state of mind of the accused towards this child, her feelings, the whole relationship between her and the child, was distinctly admissable [as evidence] …The punishment and its result (on the assumption that the child’s death was the result of the punishment) were so monstrously disproportionate to any offence that could have been said to have been committed by the child that it at once raises the question, and must necessarily have suggested to the prosecution the possibility, that what was done was not really by way of punishment, but was a means adopted by the accused of wreaking her dislike or malice upon this child.
And conversely:
..[The jury] might be inclined to allow for an honest error in judgment in the case of a parent whom they believed to have really been doing what seemed to be best for the child … If the evidence showed the parent to be habitually kind, and to have a care for the child, then although the jury might think that an error of judgment had been committed, it would probably hesitate to bring a verdict of manslaughter.

Similar reasoning has been adopted in more recent cases.(10)

II. Force That is Reasonable in the Circumstances
The second test that must be satisfied is that the force used was reasonable in the circumstances. But exactly what does that mean?

Firstly, who determines what is reasonable or what is not? Judge Inglis in the case of Kendall v Director-General of Social Welfare(11) asked:
… Does what is reasonable depend on the view of the Department of Social Welfare, or does it depend on what the ordinary loving but sensible parent would regard as reasonable? … There are … great differences of opinion within society on these issues: there are those who believe that any form of physical correction of a child is wrong; there are those who believe that children must learn, if necessary, by reasonable physical correction, that “No” means “No”; who is to say who is right?

It will be for the Court to determine whether the force used was reasonable in all the circumstances. What is reasonable force is not easy to determine and not capable of precise calculation as pointed out by Justice Denniston(12):
..The matter was treated in argument rather as if it were one of mathematical proof – as if the exact amount of punishment which was reasonable under the circumstances were capable of being mathematically estimated; but such a matter is not open to mathematical determination, because the data are not mathematical.

The Court has a wide discretion in determining what is reasonable.(13) The more obvious things that the Court will generally look at are as follows:

1. The relationship between parent and child.
2. The characteristics of the child including his or her age and maturity, sex, size and strength and character.
3. The likely and actual effect of the punishment on the particular child.
4. The nature of the offence calling for correction.
5. Type, severity and circumstances of punishment, and the extent of any injuries inflicted.
6. Culture and religious beliefs of the family.

Possibly the Court will consider what it perceives to be the current social views on the issue(14). However, it is difficult to see how this would assist the Court given the widely diverging views held within society.
(To be continued in Part 2.)

References
1. Kendall v Director-General of Social Welfare (1986) 3 FRNZ 1 at page 11.
2. New Zealand Universities Law Review 13 (December 1989) p. 370. Caldwell is a Senior Lecturer in Law, University of Canterbury. His article advocates the prohibition of all physical punishment.
3. Ibid at page 372.
4. Refer to sections 193 to 196 of the Crimes Act.
5. [1902] NZLR 478
6. Ibid at page 488
7. R v Terry [1955] VLR 114 at 117; Hansen v Cole (1890) 272 at 282; Lowry v Barlow [1921] NZLR 316, at page 318. Supra, footnote 2 at pages 373 to 374.
8. R v Trynchy (1970) 73 WWR 165 at 168. Supra, footnote 2 at page 374.
9. R v Peterson (1995) 98 CCC (3d) 253 at page 259.
10. eg R v Terry (supra, footnote 7).
11. Supra, footnote 1 at page 12.
12. R v Drake (supra, footnote 5) at page 486.
13. Supra, footnote 2 at page 375. Erick v Police (unreported, High Court, Auckland, 7 March 1985, M.1734/84) at page 3 “The statutory defence gives the Court the widest discretion”.
14. Kendall v Director-General of Social Welfare (1986) 3 FRNZ 1 at page 12, “What is ‘reasonable’ must be a matter of degree and will depend on what can be perceived to be the current social view at any given time. If a change in the law is desired then it is for Par liament, not the Court, to bring it about.”

(Robert van Wichen graduated from Auckland University in 1990 and has worked as a lawyer in Palmerston North ever since. He is now a sole practitioner. Over the years he has handled a wide variety of court cases including criminal and family law cases. He now focuses on business and technology law and civil litigation. He can be contacted on (06) 355 1276 or v.wichen@xtra.co.nz.)

From:
Keystone Magazine
July 1999, Vol. V No. 3
PO Box 9064
Palmerston North
Phone: (06) 357-4399
Fax: (06) 357-4389
Email: hedf@xtra.co.nz
Webpage:
http://www.hef.org.nz

The Parental Use of Physical Discipline in New Zealand
(Part II)
by Robert van Wichen, LLB

(In Part I Mr van Wichen introduced this subject by examining Section 59 of the Crimes Act which states:
..Every parent of a child and … every person in place of a 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.
He explained the legal interpretations of force being used “by way of correction” as opposed to vengeance, spite, ill-will, etc., taking the parent’s state of mind at the time into consideration. He then examined the phrase “reasonable in the circumstances”, mentioning that the courts have a wide discretion in determining what is reasonable, and will take into account such things as the relationship between the parent and the child, and the family’s culture and religious beliefs. In other words the context of the spanking is important.)

III. Illustrative cases
It may be helpful to consider two court cases to get a better understanding of the issues involved.

R v Peterson(15)
This Canadian case is not only useful as an illustration but also is relevant to the interpretation of section 59. The Canadian Criminal Code is virtually identical to the New Zealand Crimes Act on this subject.(16)

In September 1994, the Peterson family were celebrating Mrs Peterson’s birthday at a restaurant while holidaying in Niagara Falls, Canada. Mr Peterson and his two children, Rachel (aged 5) and William (aged 2) returned to their car to get a card and gift for Mrs Peterson. Rachel started to misbehave, and continued after Mr Peterson told her to stop. She pushed William out of the car on to the footpath as he tried to get into the car. Mr Peterson told Rachel not to close the car door, but she ignored him and deliberately slammed the door on her brother’s fingers.

Mr Peterson, angered by his daughter’s behaviour, decided that she deserved a spanking. He told her this and why. At first, he tried to smack her in the car, but she struggled so much that it was not possible due to the confined space. Initially he was going to spank Rachel over her clothes, but due to her resistance decided to adminster the spanking on her bare bottom. He carried her out of the car, placed her on the boot of the car and struck her a number of times with the flat or palm of his hand. Rachel started crying. The trial judge later found that she was uninjured and any emotional trauma was transitory.

This scene was witnessed by three people, one of whom was vehemently opposed to the physical punishment of children. The incident was reported to the Police, and Mr Peterson was charged with assault.

The judge formed the view, after hearing both Mr and Mrs Peterson give evidence, that they were reasonable, responsible, and caring parents. He described their discipline policy in the home as reasonable and designed to be in their children’s best interests.

The Crown raised several arguments. One was that the spanking was not for the purpose of correction, but was due to Mr Peterson being angry. The judge rejected that argument; what is relevant is not whether the parent is upset, distraught, frustrated, annoyed or angry, but whether the parent is in control of his or her anger or emotions. He went on to find that Mr Peterson’s conduct was measured and controlled. He accepted that Mr Peterson had an honest and reasonably held belief that a spanking was necessary to correct Rachel, and accordingly the spanking was given for a lawful purpose.

Another of the Crown’s arguments was that as the spanking was done in a public place it was not justifiable. The judge, in rejecting the Crown’s argument, decided that the place of the spanking was just one of the many factors to be considered in determining whether the punishment was reasonable. The charge of assault was dismissed.

The judge’s closing comments are of interest:
“It is readily apparent, however, that attitudes within the community towards the corporal punishment of children vary. It is one of those difficult and sensitive social issues where voices are at variance.
… [One of the witnesses] said, as a parent, she was not in favour of the physical discipline of her son, or indeed any child. She told David Peterson in no uncertain terms that what he was doing, in her judgment, was wrong; indeed, she told him that his conduct was unlawful. [That witness] was wrong as to the law of Canada. But her evidence brings into sharp focus the differing views that exist in contemporary society on the subject of child discipline. [Her] views may be shared by many; it is hard to know. But … this is not a court of social justice, but a court of law. It is the law that a parent … may physically discipline a child if such parent … brings himself or herself within the framework of s43. A judge applies the law. Parliament makes the law.”(17)

R v Erick(18)
This New Zealand case involved an appeal to the High Court against a conviction for assault. Mr Erick severely disciplined his six year old son causing extensive, though not permanent, injuries. Using a belt, he had struck him on the face and back at least ten times with considerable force. Mr Erick, a Nuiean Islander, contended that what he had done was in accordance with his culture. Evidence was given by a number of witnesses that severe corporal punishment was a normal part of Nuiean family life. The High Court upheld the conviction entered in the District Court as Mr Erick had admitted to a constable who had interviewed him that the force was excessive even by his own standards.

Of significance was the High Court’s acceptance that a person’s culture was relevant in determining whether the force used was reasonable. At page 3 of the judgment, Justice Heron stated:

“The statutory defence gives the Court the widest discretion. It provides that the force used must be reasonable in all the circumstances. It is argued for [Mr Erick] that the Courts have recognised in the area of provocation persons of non-European cultures can have different cultural characteristics, and that by analogy different cultural characteristics will be relevant to the issue of reasonable force. … I uphold that submission. I do not think that it is possible to look at this in a vacuum and simply look at the extent for example of the injuries to the child concerned. It seems to me that it is proper in all the circumstances to have regard [among other things] to the cultural characteristics of the parent and the family as a measure of what is reasonable in all the circumstances.”(19)

If that reasoning is applied consistently, a Court should also take into account other subjective(20) matters such as a family’s religious or ethical beliefs. In so doing, R v Erick rejected the narrower “objective” test, namely, “Would a reasonable person have done what the parent did in these circumstances?”, in favour of the wider “subjective” test, namely, “Would a reasonable person having that parent’s culture and beliefs have done what the parent did in these circumstances?”. The difference is highly significant.

This approach is consistent with the NZ Bill of Rights Act(21) which enshrines as a right, not only the right to hold religious and ethical beliefs, but also to manifest them in practice.

Once allowance is made for the subjective characteristics of the parent and his or her family, parents will be given significantly more latitude in determining when to correct a child and the degree of force that is reasonable.

IV. A Note of Caution
Due to widely diverging views on this issue within society, and even within the judiciary it is not possible to rule out the possibility of the Court interpreting section 59 narrowly. J L Caldwell has noted:

“… at least one New Zealand judge has admitted to a personal rejection of disciplinary methods involving ‘resort on occasion to the threat of the strap or slap.’ The modern, less enthusiastic approach may be best exemplified by the observation of Scholl, J. to the effect that there are now ‘exceedingly strict limits’ on the parental privilege of physical punishment.”(22)

However, contrast that with what Chief Justice Prendergast said in Hansen v Cole(23). This was a civil case late last century in which a pupil brought an action in the Supreme Court against his schoolmaster for caning him. What he had to say applies just as much to parents:

“… Among reasonable persons much difference prevails as to the circumstances which will justify the infliction of punishment, and the extent to which it may be properly administered. On account of this difference of opinion and the difficulty which exists in determining what is reasonable punishment, and the advantage which the master has by being on the spot, to know all the circumstances, the manner, look, tone, gestures and language of the offender (which are not always easily described), – and thus to form a correct opinion as to the necessity and extent of the punishment, considerable allowance should be made to the teacher by the way of protecting him in the exercise of this discretion. Especially should he have this indulgence when he appears to have acted from good motives, and not from anger or malice. Hence the teacher is not to be held liable on the ground of excess of punishment, unless the punishment is clearly excessive…but if there be any reasonable doubt whether the punishment was excessive, the master should have the benefit of the doubt”.(24) (Emphasis mine).

Further, as a matter of evidence, it is for the prosecution to prove beyond a reasonable doubt that the force used was unreasonable.(25) It is not for the parent to prove that the force used was reasonable, or for the purpose of correction. It will suffice if the parent’s version of what occurred is believable.

V. Summary
It will now be clear that a parent may use physical punishment to correct a child provided the force used is reasonable. However, it should be asked why so many parents have come to believe that it is wrong or illegal for them to smack their children, and fear the consequences of continuing to do so. It is important that the law on this issue is understood so that parents can discern truth from fiction, and fact from propaganda.

References
15. R v Peterson (1995) 98 CCC (3d) 253.
16. Section 43 of the Canadian Criminal Code reads, “Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.”
17. Supra, footnote 15 at page 262.
18. (Unreported, High Court, Auckland, 7 March 1985, M.1734/84)
19. Ibid, at page 3.
20. In this context, “subjective” means from the point of view of those directly involved, as opposed to “objective” which means from the point of view of artificial construct such as the reasonable man or detached and unbiased observer.
21. Section 13 of the Bill of Rights Act states, “Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference”, and section 15 states, “Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.”
22. Supra, footnote 2 at pages 376 to 377.
23. [1891] 9 NZLR 272. It is of some interest that even last century this issue was a contentious one; in this case reference was made to a view expressed elsewhere that physical punishment was a “relic of barbarism”. Perhaps things have changed less than some would have us believe.
24. Ibid, at pages 281 and 282.
25. Erick v Police (unreported, High Court, Auckland, 7 March 1985, M.1734/84) at page 2.

(Robert van Wichen graduated from Auckland University in 1990, and has worked as a lawyer in Palmerston North since graduating. He is now a sole practitioner. Over the years he has handled a wide variety of court cases (including criminal and family law cases). He now focuses on business and technology law and civil litigation. He can be contacted on (06) 355 1276 or v.wichen@xtra.co.nz.)

From:
Keystone Magazine
July 1999, Vol. V No. 4
PO Box 9064
Palmerston North
Phone: (06) 357-4399
Fax: (06) 357-4389
Email: hedf@xtra.co.nz
Webpage:

www.hef.org.nz