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Parents’ defence should go

Filed under: Law & Courts — JohnPotter @ 11:11 am Tue 31st May 2005

Press Release: New Zealand Law Society

Parents should not be able to defend charges of assault against children by claiming they were using ‘reasonable force’ to correct a child, says the Chair of the New Zealand Law Society’s Family Law Section, Simon Maude.

He was responding to the jury’s acquittal in Timaru of a mother charged with assault for giving her son six strokes with a cane and a separate charge arising from striking him with a horse whip. She was found not guilty because of the statutory defence in section 59 of the Crimes Act 1961, which allows parents to use reasonable force when disciplining children.

Simon Maude said the acquittal reinforces the Family Law Section’s view that the statutory defence should be repealed.

“Modern understanding of the cyclical nature of domestic violence and the harm it does, demands that our law no longer condones parents using violence against children,” he said.

The Family Law Section has already written to the Government expressing its opposition to the law in its current form and has offered to help draft appropriate replacement legislation.

2 Responses to “Parents’ defence should go”

  1. John Brett says:

    Is this what the judge regarded as “Reasonable force”?
    I think it is the competence of the judges that should come under scrutiny, not the defence of “reasonable force”.

  2. Anonymous says:

    Please read the full details of the “horsewhipping case” before mis-judging and mis- quoting it. The following is an interview which was had with Bob McCoskrie of Radio Rhema
    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 syblings 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 conjuntion 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 disclipline 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 behavour and I reassured him that I loved him but disliked the behaviour. He told me he wouldnt 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 injurous. 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 eduction 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 againt 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 substanciate 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 discpline.
    The jury clearly thought that UNDER the circumstances presented BY the prosecution, the boys behaviour was out of control and the discpline 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 discpine for such as having been inappropriate the circumstances, irrespective of the circumstances which led to this discpline 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 riding crop?
    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, which was not apparent when checked again. This is hugely different from a welt.
    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, inconsisent 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 unsubtanciated 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 one one occassion 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 didnt know of when we married ), went to prison for attempting grevious 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 womens 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 realsied that I had suffered from battered womans 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 fauult 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 constitues 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 childrens 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.
    Was he smacked?
    Yes my eldest son was smacked by me and only if his behaviour warranted it. The discpline he recieved 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 Ben 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 occured. 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 whos 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 curcumstances they would definitely discipline long 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 chilren 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 discpline 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 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 constistutes violence and violence begets violence (their favouite quote). I have been told it is their POLICY to REMOVE children from the care of parents who smack to discpline. They will not advocate smacking in any form. I have pointed outthat this is contrary to the law which allows for reasonable physical displine 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 discplined 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 occassion 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.
    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. This action frightened my son so much that he subsequently ran away and rang me form a house where he felt safe.
    The social worker has denied me access of late, 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.
    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 bacuase the parents do know 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 fmaily 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 sitation 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 didnt 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 finiancially, 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 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 in 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 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 intneded 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 defintiely 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 undiscplined 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 regualrly hear of schools and churches ramapged by young people wield ing weapons and going on killing sprees. Dr Benjamin Spock who promoted anti smacking thinking. his own son is reported to have comitted suicide.
    In Great Britian 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 unsubstanciated 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 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 can be entirely appropriate in a given situation.
    Repealing will section 59 will mean that even a simply hug offered to an unwilling child consistutes assault, as will a gentle shove towards the bedroom when the child doesnt 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 discpline their child through the writing of letters, emails, etc .
    I would like to encourage all listeners who believe that loving reasonable physical discpline is the right and Godly thing to do to write to their MPs and further to all members of cabinet ( their email addys are availabe on http://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.
    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 familes to be strenghtened 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.

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