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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:
www.hef.org.nz
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