Office of Hon Mark Burton, M.P. for Taupo. Minister of Justice. 6 June 2006.
Dear David
Thank you for your email of 22 February 2006 regarding section 59 of the Crimes Act 1961. Your email to the Associate Minister for Social Development and Employment has been referred to me for direct response as these matters fall within my portfolio responsibiliities as Minister of Justice.
As Minister of Justice, I am not able to provide you with legal advice, and this response to your email should not be interpreted as such. However, I can make some general comments about the interpretation of section 59.
As you are aware, section 59 of the Crimes Act 1961 is currently available as a defence to a parent or a person in the place of a parent who is charged with offences involving the use of physical force to discipline their children. Under section 59, parents in the place of a parent are justified in using reasonable force against their children for the purpose of correction.
You have asked for clarification as to which persons and/or categories of persons qualify as “a person in place of a parent” in the context of section 59. Child Youth and Family (CYF) caregivers have been treated as persons in place of a parent for the purposes of section 59 (Re the Five M Children). In addition, CYF has a clear policy on the discipline of children or young people placed with caregivers. The policy states that corporal punishment of any sort is not acceptable, regardless of the provisions of section 59.
The courts have not determined whether or not the other persons and/or categories of persons you have mentioned in your email are considered as “a person in place of a parent”. The majority of case law on section 59 concerns the actions of parents, and deals primarily with the reasonableness of the force used.
Some Canadian cases have dealt with the issue of who a “person in place of a parent” is. R v Murphy involved discipline by a child’s uncle while babysitting the child. The uncle was held to be acting in place of the child’s parents. In the case of Ogg-Mos v The Queen, a mental retardation counsellor assaulted a resident of a regional care centre. In that case, the Judge stated that there were two ways in which a person could put himself in place of a parent: if the person assumes, in the absence or default of the natural parents, the parental duties that give rise to parental rights; or if the right is delegated to the person by the natural person. Delegation could not simply be inferred from the fact of placing a child in the temporary care of another. The counsellor was held not to be a person in place of a parent. These judgments are not binding on a New Zealand court, but they may give some indication of how the courts might interpret “a person in place of a parent” in the context of section 59.
Yours sincerely
Hon Mark Burton
Minister of Justice
Minister of Local Government
Minister in Charge of Treaty of Waitangi Negotiations
Minister Responsible for the Law Commission
Deputy Leader of the House
[Original letter on file. Minister to David Lane]______________________________________________________________________
Attention:
Hon Ruth Dyson
Minister of Social Development and Employment (CYPFS)
Urgent Request for Clarification
22 February 2006
Dear Ms Dyson
Thank you for voicing your concerns over the violence inflicted against innocent NZ children by many parents.
In your press release dated 15/02/06 copied below, you state:
Section 59 of the Crimes Act 1961 states that the parents of a child, or a person in place of a parent are ‘justi?ed in using force by way of correction towards a child if that force is reasonable in the circumstances.’
It is very appropriate that you have brought section 59 of the Crimes Act 1961 to the attention of the public. Many NZers would never have heard of it.
Would you please clarify exactly which persons and/or categories of persons qualify as “a person in place of a parent” in terms of the s. 59 defence that is open them as persons in loco parentis.
1. Does in include all foster care parents, or just some of them; who have been looking after children placed in their full time care by CYFS and have been receiving regular reimbursements from CYFS for some of the costs involved feeding, housing, nurturing, disciplining and clothing etc. the children, (all carried out free of charge in their own homes long-term)?
2. Does it include an exam supervisor who is supervising a 3-hour public exam for a number of children, alone in a room?
3. Does it include a swimming instructor who has charge of young children where parents are not in attendance and a coaching fee has been paid by the parents?
4. Does it include the Catholic priest who has an altar boy placed under his direct care by the boy’s parents for regular training in spiritual matters?
5. Does it include a group of parents who are assisting a teacher at a school camp take 24-hour resonsibility for the care of children who are not their own?
Please provide responses to these questions asap (including an e-mail copy).
Yours sincerely
D. H. Lane
{E-mail on file]
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