Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill 2006

Caritas supported an amendment of this Bill, as we supported neither the status quo which had not adequately protected children, nor full repeal of the Bill, which did not define the threshold for prosecution by the police of parents using physical punishment.

While recognising that there are better means of discipline than physical punishment, Caritas does not believe that parents should be prosecuted for minor or intermittent acts of physical punishment of children, and that if that is the government’s intention, that the law should say so.

However, we similarly recognise that the status quo, which has allowed juries to acquit parents who have used implements against their children, has allowed parents to abuse their children in the name of discipline, and we support change.

Submission to the Justice and Electoral Select Committee

on Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill

Our basic Catholic teaching applies equally to children as adults: every person is made in the image and likeness of God, and therefore has an innate dignity. We invoke this teaching in confirming our commitment to support everything that will promote the protection of children. New Zealand Catholic Bishops Conference, The Protection of Children, 2002

How can we not care, when we see the suffering of so many children, especially when this suffering is in some way caused by grown ups? Pope John Paul II, Letter to Children, 1994

Summary of position

Caritas Aotearoa New Zealand (Caritas) recognises the necessity of this bill, and supports its broad intent of reducing violence against children. We believe the lack of legal clarity between discipline and abuse contributes to New Zealand’s unacceptably high levels of child abuse and mistreatment, as most of these incidents are at the hands of parents or guardians in the name of punishment or discipline.

However, we also believe that if it is not the intention of this Bill that parents be prosecuted for minor or intermittent acts of physical contact or restraint, that this needs to be specified in the law.

After much consideration, our preference is to support an amendment position, rather than full repeal of Section 59 of the Crimes Act. We would like to see greater, though not exclusive detail, of what constitutes unreasonable force used against children, and to make it clear that this does not include minor or intermittent acts of restraint of children by their parents.

Caritas would like to make an oral submission to the Select Committee to discuss our submission.

Background

Caritas recognises that the New Zealand Government must ensure that children have a right to protection under general human rights agreements as well as the United Nations Convention on the Rights of the Child. Declaration of Human Rights: Article 5 says that no one will be subjected to cruel, inhuman or degrading treatment or punishment. United Nations Convention on the Rights of the Child (UNCROC): Article 19 says that state parties will legislate to protect the child from all forms of physical and mental violence, injury or abuse while in the care of parents and guardians. The Committee for the Rights of the Child has on several occasions asked the New Zealand Government to remove the defence of reasonable force allowed in Section 59 of the Crimes Act, in the context of New Zealand’s very high levels of violence against children.

We share the public concern which has arisen because of a number of cases over several years where significant violence was used against children, in some cases with implements such as whips, canes and garden hoses, but defendants were acquitted by juries who accepted this was reasonable force.

Caritas believes that, at present, the Crimes Act does not adequately protect children. We have not found a Catholic organisation among the many we have consulted which supports the status quo. However, there are a range of positions on alternatives to the status quo by Catholic groups and individuals.

We also recognise that this Bill concerns situations where reasonable force is used as a defence to assault, rather than being a broad based “ban on smacking” as some critics have described it. Our understanding is that it is a necessary attempt to clarify situations where physical violence is used against children in the name of discipline or punishment, and we support that attempt.

We recognise that research shows that physical punishment of children has many negative outcomes, including a growth in fear and aggression in children, an escalation of violence against children and an endorsement to children that it is all right to use pain to change behaviour.

Caritas recognises that best practice by all parenting and social work groups is to provide education and policies that prevent the use of physical punishment. All Catholic social service agencies have had policies in place for some time now banning the use of physical punishment by social workers, foster parents and others who care for children. For example, Auckland Catholic Family and Community Services have a clearly defined policy that no form of corporal, physical or emotional punishment of children or young people is acceptable when they are in the care of a support family placed through a child and family service. Their intervention work with families is based on assisting parents to find alternative strategies.

However, Catholic social service groups clearly distinguish discipline issues from those of restraint, in which parents use physical means to keep a child from harm, such as grabbing a child running out on to a road, taking dangerous objects away, pushing hands away from hot elements, and physically separating fighting children.

Catholic schools and organisations also supported the removal of corporal punishment in schools in recent times. At least in some instances this was partly based on the experience of some religious communities in schools that punishing children physically required a constant escalation of violent interactions to maintain order, and this is similar to the process described in home discipline.

As is well known, the Catholic Church also has had to face up to its responsibilities towards the abuse of children by those in its care. We ask the Select Committee and all groups considering this issue to learn from our experience that general concern for children does not always protect them unless we listen carefully to what they are telling us.

The scandal of abuse by clergy is similar to the scandal of child abuse by parents and guardians – that children have not been protected by those particularly entrusted to care for them – and we recognise that at times this has resulted from a lack of boundaries between acceptable and unacceptable discipline.

We accept that attempting to define reasonable or unreasonable force used against children is inherently flawed and future generations may judge us as harshly as we now consider the Scottish “rule of thumb” which allowed a man to beat his wife so long as the stick used was no thicker than his thumb. While this may have once been an attempt to reduce domestic violence by defining it, its impact was in fact to legalise it. Any attempt to amend this Bill will need to be very careful not to have a similar result of legalising particular acts of violence against children.

No discussion of family life would be complete without the recognition of the importance of love. Love requires that parents find ways to teach and guide their children, and without love any form of discipline too easily becomes abuse. However, we must recognise that many acts of domestic violence take place in situations where husbands believe they love their wives, or parents their children, but they actually still inflict physical and emotional harm. Love for us also means that what is done to the least of our brothers and sisters is done to Christ.

We would like to see definitions of discipline, punishment and restraint used in the Bill, to clearly distinguish the intent of parental physical contact of children. The explanations which we have used in discussing the bill are: Punishment: Punishment is a short term, temporary remedy for unacceptable behaviour. It usually prompts an immediate superficial change in behaviour, in which the behaviour is suppressed rather than changed. Corporal punishment depends on inflicting physical pain as a response to bad behaviour. Discipline: Discipline requires parents to be teachers of appropriate behaviours and values. Parents guide the development of internalised control and self-direction, rather than resorting to threats, harsh responses, and physical and emotional hurt. Restraint: Restraint is acceptable use of physical means to protect a child from greater harm (such as the examples outlined in 2.7).

Catholic Social Teaching

The balancing point in Catholic social teaching is between protection of children and subsidiarity of families.

Protection of children The Holy See was one of the first signatories to UNCROC and the late Pope John Paul II spoke in support of children’s rights on numerous occasions from 1979, and by Vatican representatives at the United Nations.

Until recently this teaching has tended to focus on violence committed against children by external factors to the family – for example, trafficking, prostitution, child labour, child soldiers and so on, with a strong position taken that the family is the best protection for children’s rights against those forces.

Only recently, and most strongly in the case of the New Zealand Catholic Bishops Conference statement on The Protection of Children, has there been a recognition that many children are not safe in their own homes. In the New Zealand context, the reality is that most violence against children occurs in their own homes, and not by strangers.

We rejoice in the fact that there are very many wonderful families in which parents surround their children with the life and love they deserve….Sadly, however, many children do not experience the security of a loving and protective family. What is even more distressing in our present day, is to learn of children who are exploited, neglected and abused – abuse which can be verbal, physical or sexual. As a Church community, it is a cause of deep shame to us that some within the Church family whose very role it has been to protect children, have been guilty of this abuse. We acknowledge the evil. We offer profound regret and sincere apology. New Zealand Catholic Bishops Conference, The Protection of Children, 2002

Other relevant statements from the Holy See include:

In the family, which is a community of persons, special attention must be devoted to the children by developing a profound esteem for their personal dignity, and a great respect and generous concern for their rights. This is true for every child, but it becomes all the more urgent the smaller the child is and the more it is in need of everything, when it is sick, suffering or handicapped. Pope John Paul II, Familiaris Consortio, 1981

The commandment “honour your mother and father” indirectly tells parents: Honour your sons and your daughters. They deserve this because they are alive, because they are who they are, and this is true from their first moment of their conception. Pope John Paul II, Letter to Families, 1994

It seems that full recognition of the child’s human dignity, of all children, images of God, from the moment of their conception, has been lost and this must be recovered. The true measure of a society’s greatness is the extent to which the society recognises and protects human dignity and human rights and ensures the well-being of all its members, especially children. Cardinal Trujillo, representative of the Holy See to the Special Session of the United Nations on Children, 2002

Concern for the child, even before birth, from the first moment of conception and then throughout the years of infancy and youth, is the primary and fundamental test of the relationship of one human being to another. Pope John Paul II, Familiaris Consortio, 1981

Subsidiarity and the Family The Catholic Church also has other principles to take into account, including the subsidiarity of families. This principle of Catholic social teaching recognises that decisions are best made by those closest to them. It says that no higher level of organisation, such as government, should perform any function that can best be handled at a lower level, such as families and local communities who are closer to the issue or problem.

In the case of the family, the Catholic Church has spoken clearly that families are the first protectors of children, and the State should only intervene when the safety of children is endangered.

In conformity with the principle of subsidiarity…the State can only intervene in family life when the dignity of the child and its fundamental rights are seriously endangered, taking solely into consideration “the child’s higher interest” without any form of discrimination. Pontifical Council for the Family, The Family and Human Rights, 1983

The family and society have complementary functions in defending and fostering the good of each and every human being. But society – more specifically the State – must recognise that “the family is a society in its own original right” and so society is under a grave obligation in its relations with the family to adhere to the principle of subsidiarity. By virtue of this principle, the State cannot and must not take away from families the functions that they can just as well perform on their own or in free association, instead it must positively favour and encourage as far as possible responsible initiative by families. Pope John Paul II, Familiaris Consortio, 1981

The mission of education must always be carried out in accordance with a proper application of the principle of subsidiarity. This implies the legitimacy and indeed the need of giving assistance to parents, but finds its intrinsic and absolute limit in their prevailing right and their actual capabilities. Pope John Paul II, Letter to Families, 1994

The principle of subsidiarity requires us to consider at what point the State can, and in fact should, intervene in family life. Caritas recognises that there are better alternatives to the physical punishment and discipline of children, but also recognises that there are minor instances of this which do not justify intervention by the State.

Because of this, we favour an amendment to the Bill, while recognising that any attempt to draw a line between abuse and discipline is inherently difficult and is likely to fail some children and their families.

This position is not intended to endorse any acts of physical punishment of children, but is rather based on the belief that there is a need for limits on intervention. We have a concern that potentially criminalizing absolutely all acts of physical punishment of children could widen too far the net of those in the community drawn under the legislation.

Additionally we are taking this position, because the criminal justice system is a fairly blunt instrument to deal with issues that often require education and attitudinal change. We fear that a law that does not exclude minor instances of physical discipline leaves open the possibility of discriminatory or unfair outcomes. We are well aware that, despite the best efforts of many within it, the criminal justice system does not always work without discrimination, and that poor and minority groups at times have just cause for complaint.

Amendment We favour an amendment which defines “unreasonable force”, rather than one which attempts to define reasonable force and by omission allows some actions to be seen as legal.

We have considered a number of proposed amendments and would support wording that includes the following points: That unreasonable force includes, but is not limited to, repeated and/or heavy blows, punching, striking with an object, whipping, kicking, shaking, hitting around the head, twisting of limbs, burning, biting, and any other action which medical evidence or research findings confirm as having an injurious effect on the physical or mental health of the child.

That no adult shall be precluded from using such reasonable force as is necessary to remove a child from a life-threatening or dangerous situation. That no parent will be precluded from using minor or incidental physical restraint to maintain order and control, so long as such actions do not have an injurious effect on the physical or mental health of the child. That these provisions are not intended to be used to separate children from their parents or to discourage the discipline of children. Rather they are intended to encourage the use of non-physical means of disciplining children.

Lisa Beech Research and advocacy officer Caritas Aotearoa New Zealand

ENDS

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