United Future MP Gordon Copeland has recently received a legal opinion he commissioned from Peter McKenzie QC, dealing with the effect of Green MP Sue Bradford’s private member’s bill, on the actions of parents who remove their kids using “reasonable force”, against their will, to “time-out zones” for disruptive and defiant behaviour. He concluded that under the current amendments to the bill, parents would be committing an act of criminal assault for such actions, for which there would be no defence in law when an element of correction was involved. The current law does allow for a defence for parents for the use of “reasonable force” in such situations where they face a charge of “asault”, but only if their actions specifically involve disciplinary correction of the child. This defence would be removed if Bradford’s bill becomes law. Mr Mckenzie’s legal opinion is set out below in full.
Peter McKenzie QC
Telephone: 04 472 6172
Facsimile: 04 471 0672
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11 March 2007
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Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill – Effect on Parental Corrective Action
Background
1. I have been asked to provide an opinion on the impact of the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill on particular forms of parental corrective action, the example given being the carrying of a child (against the child’s will) to a “naughty mat” or other room in the house (e.g. the child’s bedroom or bathroom), as a discipline, commonly called “time out”. It is a form of discipline many parents use in preference to physical chastisement, such as smacking the child.
2. The question I have been asked to consider is whether the act of removing the child against its will to the place where the child is sent for the purposes of discipline would in itself constitute an assault in the absence of a statutory defence such as the present s.59 of the Crimes Act 1961.
3. Section 59 creates a special defence under the heading “Domestic discipline” as follows:
“59(1) Every parent of a child and subject to subsection (3), every person in the place of the 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.
(2) The reasonableness of the force used is a question of fact.
(3) Nothing in subsection (1) justifies the use of force towards a child in contravention of s.139A of the Education Act 1989 [a section that prohibits the use of force by way of correction or punishment by teachers under that Act].”
4. The Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill being sponsored by Sue Bradford MP (“the Bill”) proposes to repeal s.59 and substitute for it a new section, set out later in this opinion, which justifies a parent in using force only for certain limited purposes for the protection of the child and provides that nothing in the new section or in any rule of common law is to justify the use of force for the purpose of correction.
5. The Justice and Electoral Committee, which is the Select Committee hearing submissions on the Bill, sought advice from the Law Commission on legally effective options for the reform of s.59 and in particular referred to the Law Commission for consideration the proposed Bill put forward by Sue Bradford MP, draft Bill proposed by Chester Borrows MP and a draft Bill proposed by Professor Bill Atkin and Ms Fran Wright, which substantially forms the basis for the Bill which is presently before the House.
6. The Law Commission put forward an alternative approach which included correction as one of the circumstances which would constitute justification on the part of a parent and added a further subsection which specified certain purposes where the use of force would be unreasonable, namely:
“(a) it involves conduct prohibited by an enactment creating a criminal offence, other than an offence under –
(i) section 194 (assault on a child or by a male on a female); or
(ii) section 196 (common assault); or
(iii) section 9 of the Summary Offences Act 1981 (common assault); or
(b) it causes or contributes materially to injury that is more than transitory and trifling; or
(c) any weapon, tool, or other implement is used; or
(d) it is inflicted by any means that is cruel, degrading, or terrifying.”
The Bill, as reported back, did not include either of those suggested changes in the Law Commission’s proposals.
7. The key clauses in the Bill presently before the House are clauses 3 and 4 which provide as follows:
“3. Purpose
The purpose of this Act is to amend the principal Act to make better provision for children to live in a safe and secure environment free from violence by abolishing the use of parental force for the purpose of correction.
4. New section 59 substituted
Section 59 is repealed and the following section substituted:
‘59 Parental control
(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of –
(a) preventing or minimising harm to the child or another person; or
(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
(d) performing the normal daily tasks that are incidental to good care and parenting.
(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
(3) Subsection (2) prevails over subsection (1).’”
8. The question for opinion is directed at whether the Bill as it presently stands with the removal of any justification for the use of force for the purpose of correction, means that the kind of action referred to in para.1 above would constitute an assault under the Crimes Act.
The meaning of “assault” under the Crimes Act
9. The Crimes Act 1961 defines “assault” in s.2:
“assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose; and to assault has a corresponding meaning”
10. The definition of “assault” substantially codifies the earlier common law. The essential elements of the crime are:
(a) Intention. An unintentional action such as unintended bumping or jostling of a person in a crowd will not be an assault. Neither will there be an assault if the recipient consents to the act or gives the other party reasonable cause to believe that there is consent.
(b) The application or attempted application of force to the person of another. The Courts have given a very broad meaning to these words. An assault need not involve violence within the ordinary meaning of that word. As stated by Wylie J in Police v. Raponi (1989) 5 CRNZ 291 at 296:
“It is well known that assault does not require such a powerful action. A mere touching can amount to an assault … a pat on the bottom or a kiss can be an assault, the mere brushing of some part of a person’s body can be an assault …”
And as stated by Fisher J in Police v. Bannin [1991] 2 NZLR 237 at 244:
“It is trite law that the amount of force used is immaterial. To kiss or touch a person against her will is an assault.”
(c) A threatening act or gesture to apply force to the person of another will be an assault if there are reasonable grounds to believe that the person has the present ability to effect that purpose. The intentional creation of fear of harm to another person may constitute an assault where that harm is reasonably apprehended. Again the level of harm is immaterial.
Does carrying a child against its will to a “naughty mat” constitute an assault?
11. In the absence of the defence under the present s.59, the carrying of a child, against its will, to a “naughty mat” or another room clearly constitutes an assault. It comes within the definition of an “assault”, being an intentional act directed at the child and involving the application of force against the child’s will. There can be no doubt that if an adult were treated in this way an assault under s.196 of the Crimes Act would be committed. The removal of the defence in s.59 places the child in the same position as an adult.
12. The question then arises whether the justification defence, set out in clause 4 of the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill would provide a defence for parents in those circumstances. Sub-paragraphs in the new s.59(1) provide a defence in relation to various circumstances in which there is parental intervention. These are:
(a) Preventing or minimising harm to the child or another person;
(b) Preventing a child from engaging or continuing to engage in conduct that amounts to a criminal offence;
(c) Preventing a child from engaging or continuing to engage in offensive or disruptive behaviour;
(d) Performing the normal daily tasks that are incidental to good care and parenting.
13. The Law Commission in para.8 of its report, expressed the view that the non-disciplinary interventions which parents are permitted to make under subclause (1) cover a gap in the law that needed to be addressed, “because, on the wording of section 59, the application of force from any motivation other than correction is an offence currently” (the Law Commission emphasis). I doubt that the gap is as wide as the Law Commission suggests. The common law defence of necessity which is preserved by s.20 of the Crimes Act is likely to cover interventions which are needed in order to prevent harm to the child or prevent the child from engaging in criminal activity or disruptive behaviour. In my opinion, the defence of necessity would under the present law cover interventions such as restraining a child from walking in front of traffic and removing an offensive weapon or seriously harmful drugs from a child.
14. The Courts have recognised in cases such as Kapi v. Ministry of Transport (1991) 8 CRNZ 49 (CA) and Police v. Kawiti [2000] 1 NZLR 117 that the defence of necessity may be available not only if there are grounds of imminent peril of death or serious injury to the accused, but also danger to another person where “necessity of circumstances” justifies the accused breaking the law.
15. It might be thought at first sight that subparas.(c) and (d) of the proposed s.59(1) cover the circumstance where a child is carried against its will to a “naughty mat” or another room for “time out”. The purpose of the action could be said to be to prevent the child from continuing to engage in disruptive behaviour or could be described as being the performance by a parent of one of the normal daily tasks of good care and parenting, namely to discipline the child. There is a difficulty, however, in viewing matters in that way in that subclause (2) provides:
“Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.”
16. The purpose of the Act is also stated in clause 3 to include “abolishing the use of parental force for the purpose of correction”. What subparas.(c) and (d) appear to confer by way of defence is, in my opinion, taken away by subclause (2) and clause 3.
17. It would appear very difficult to regard the forcible carrying of a child to a “naughty mat” or another room as being done for any other purpose than that of correction.
18. The relevant meanings of “Correction” as defined in the Shorter Oxford English Dictionary are:
“(a) The action of putting right or indicating errors.
(b) An act or instance of emendation; that which is substituted for what is wrong …
(2) Reproof of a person for a fault of character or conduct.
(3) Chastisement, disciplinary punishment; esp corporal punishment …”
19. It is apparent from this definition that correction does not involve only the act of chastisement or disciplinary punishment. It may also involve the action of indicating errors and reproving the person’s conduct. The act of correction is closely identified with parental training and discipline. As stated by Fisher J in Sharma v. Police [2003] 2 NZLR 473, 476, paras.[13] and [15], after referring to the words “using force by way of correction” in the present s.59:
“[13] The expression “by way of correction towards the child” is a reference to the subjective purpose of the defendant. So long as the force is used honestly for the purpose of correction, not vindictively or for some other purpose, that element is satisfied ….
[15] Correction implies that the object of the punishment was to deter repetition of improper conduct.”
20. The purpose of the parent in carrying the child to a “naughty mat” or another room is for the purpose of correction and discipline, ie to point out to the child its error and to reprove the child’s conduct. The act of carrying the child to the “naughty mat” and the act of making the child stand or sit there during a period of time-out cannot be separated, they are all part of the process of correction. Subsection (2), however, excludes correction from being a justifiable purpose. It follows, in my opinion, that the forcible removal of the child to the “naughty mat” or another room is an assault and could at least technically give rise to the parents being prosecuted for common assault under s.196 of the Crimes Act or for assault on a child under the age of 14 years under s.194. The width of subsection (3) is indicated by the Law Commission’s view in para.12 of its report:
“And with reference to subsection (3) it states that subsection (3) prevails over subsection (1:
Subsection (3) has been included for the same reasons [i.e. to signal the change in the scope of the provision]. In the event of a potentially ambiguous situation such as “time-out”, where there may be a mix of motives, subsection (3) seeks to ensure that parents cannot rely upon a corrective purpose for their actions.”
21. For most parents the corrective purpose would be the dominant or indeed the only purpose for “time-out”. For some there may be a vindictive or malicious purpose to frustrate or anger the child but that would clearly be unacceptable under the present s.59.
The discretion not to prosecute
22. Having formed the opinion that the carrying of a child against its will to a “naughty mat” or another room for the purpose of correction may be an assault under the Crimes Act, it is necessary to consider whether the position of parents in this respect is adequately covered by the discretion of the Police not to prosecute.
23. The Select Committee at p.5 of its report placed some weight on the Police discretion whether or not to prosecute and considered that the removal of correction as a justification for using force would not open the door to widespread prosecution because, “as with any other offence, the prosecution of parents and every person in the place of a parent for the use of force against children for the purpose of correction would be a matter for Police discretion, although private prosecutions remain a possibility”.
24. It is often stated that a law that leaves a large area to Police discretion is not good law and places both the Police and Courts in difficulty. For example, in the debate that preceded the enactment of the Prostitution Reform Act 2005, the dangers of a law that leaves a large discretion to the Police featured in the arguments of those who supported the Bill.
25. Although the very wide way in which assault is defined under the criminal law leaves a wide area of discretion to the Police, the removal of the defence under s.59 in cases where parents physically remove a child for the purposes of correction, widens this discretion further in a particularly sensitive area. It should not be thought that this type of corrective action does not give rise to traumatic incidents that would attract Police attention. The carrying of a struggling, screaming or shouting child (which may attract the attention of neighbours) may require determined physical action from a parent and if the child throws himself/herself about there could be injury.
26. A law which confers a wide discretion on the Police has particular dangers in three areas:
(a) A danger to those sections of the community with which the Police are required to have frequent dealings. Regrettably, the statistics in New Zealand (as elsewhere) show that it is in the lower socio-economic areas of the community that Police activity is most frequent. There are families in that section of the community who will be known to the Police and complaints directed at them may well be treated with more vigour than in a so-called respectable suburban area.
(b) Another group which is vulnerable in this area is foster parents and other caregivers against whom complaints may be made by children who have resented their means of correction or denial of privileges. In cases involving the public interest (caring for children or other persons), the Police may consider more readily that a prosecution be brought.
(c) Spouses or partners in a situation of marital and domestic breakdown are more vulnerable to complaints by an aggrieved or vindictive spouse or partner. If there has been Police intervention in other respects, there may be a greater preparedness to prosecute.
It is unfair both to the Police and those with whom they deal to be required to operate with a law that fails to give clear guidelines as to the steps that parents may legitimately take in the correction and discipline of their children without being exposed to the possibility (even if in many cases unlikely) of the threat of prosecution.
Conclusions
27. The carrying of a child, without its will, to a “naughty mat” or another room for the purposes of “time-out” will, in the absence of a statutory defence, come within the meaning of an assault under the Crimes Act 1961.
28. The “justifications” for parental intervention set out in s.59(1) which is proposed to be inserted into the Crimes Act by clause 4 of the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill, do not provide any justification for parental intervention for the purpose of correction. Any use of force for the purpose of correction is expressly excluded by reason of clause 3 and the proposed s.59(2) and (3). In my opinion, the carrying of a child against the child’s will to a “naughty mat” or another room in order to provide correction or discipline to the child cannot be justified under the proposed Bill and would, therefore, come within the meaning of an assault under the Crimes Act.
29. In my opinion, reliance on the Police discretion whether to prosecute or not confers a wide discretion on the Police which has dangers, particularly for those sections of the community with whom the Police are required to have frequent dealings, for foster parents or caregivers who are more likely to be the subject of complaints from aggrieved children, and for spouses or partners in a situation of marital or domestic breakdown.
P D McKenzie QC
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