Press Release
27 April 20076
How Caregivers will be Criminalised Under Bradford’s Bill
If Green MP Sue Bradford’s ‘anti-smacking bill’ is passed into law, increasing numbers of childcare workers (e.g. creche
and kindergarten workers) and those in the place of parents (e.g. grandparents, foster parents and guardians) will be
charged with criminal assault by the police for lightly smacking children for “correction” purposes and will find
themselves before the Courts defending actions which the vast majority of good parents consider perfectly justified as
part of good domestic disciplinary procedures.
As one leading New Zealand barrister, Mr Peter McKenzie QC, has reported in a comprehensive legal opinion on the effect
of the Bill, some could even find themselves charged with criminal assault for applying “force” for removing troublesome
and recalcitrant kids to “time-out” or “naughty-mat” zones because the discipline was done with the intention and for
the purpose of “correction”. The intention of Bradford’s flawed bill, as clearly stated, is to make the use of all force
illegal when used for “correction” by parents or those in the place of parents.
Sadly, the New Zealand public has too often seen the ugly face of badly applied law. Some cases have involved the
domestic discipline of children (the case of the criminalising [for assault] of foster parents Don and Anne Eathorne
through the actions of CYFS) and others involving public facilities where children are cared for by dedicated staff (The
notorious Christchurch Creche case). An example of the latter, is the case involving a create worker – Judith Anne Hende
- who was wrongfully convicted and sentenced in a District Court for an assault on a child in her care and charged with
wilfully and without lawful justification or excuse, stupefying a child (W) under her care. In 1995 the guilty verdict
for stupefying was set aside by the Court of Appeal and the conviction was quashed. The Court directed that a judgment
and verdict of acquittal be entered. Hende had been fined $1,000 by the District Court on the charge of stupefying a
child.
More important to the debate over Bradford’s anti-family bill is the fact that when the Court of Appeal dealt with
Hende’s conviction for assault, its ruling was that it be set aside and “the appellant be discharged without
conviction”.
The Queen v Judith Anne Hende (CA196/95)
Coram: Eichelbaum CJ, Hardie Boys J and Henry J
Hearing 24 July 1995 (at Auckland)
On 18 September 1995 Judge Eichelbaum CJ issued the Court of Appeal’s Judgment that in part dealt with the assault
charge against Ms Judith Anne Hende and he “discharged [her] without conviction”. Hende, the appellant, was a licensee
of a creche and had appealed against her conviction and sentence for assault and other matters, by a District Court. The
assault charge was laid by the police under s. 194(a) of the Crimes Act. It was alleged that she assaulted a child (S)
under the age of 14.
Eichelbaum CJ stated in his Judgment:
“The particulars alleged were ‘hitting child when [the child was] going berserk’ … The only prosecution evidence of the
assault was in the depositions of two witnesses who were unavailable to give evidence at the trial.” [Permission was
granted by the Judge for the depositions to be read at the trial.]… “The second witness (the sister of the first) said
she saw the appellant smack the child twice with her open hand on his bottom, two smacks one after the other on the same
occasion. Cross-examined briefly, she agreed her memory about what exactly happened was a bit hazy, and that the smacks
would not have hurt.”
“Given, however, that as to the nature of the assault the Court had only the bare words quoted [by the witness], there
was no justification for treating the incident as involving anything more than a pat on the bottom. Although technically
an assault, it did not merit the stigma of a conviction and the fine [of $250] imposed”
“…the appellant has been through a seven day trial and two hearings before this Court, and the events are now three to
four years old”
This tragic case highlights how police, even after presumably applying careful discretion (we doubt it in this case),
will readily lay charges for a mere “technical assault” for incidents involving a mere “pat on the bottom”, and allow
such trivial matters to be taken to Court leading to the stigma of a conviction and a fine being imposed on an innocent
child care worker. Police merely do their job when Child, Youth and Family Services (CYFS) and similar agencies – the
so-called “experts” in child advocacy – fail to apply commonsense, are consumed by their own misguided zeal and
ideological bias and are goaded into action by parents with their own agendas. The Police regularly hand the troublesome
matter from the basket labelled “Too Hard” – to the Courts – relying on the legal “experts” to decide. Police are too
busy chasing serial rapists, child molesters, bank heist professionals, and those committing aggravated robberies and
sexual assaults, to be bothered too much by cases involving children being patted on the bottom.
It is staggering and hard to believe that such trivial and ridiculous cases as those involving some of the charges laid
against Judith Hende, end up in Court even without Ms Bradford’s bill becoming law! When it does become law – God forbid
- the gloves are off! Agencies like CYFS will pursue all manner of trivial prosecutions against decent parents who seek
to administer corrective discipline to their children for serious wrongdoing. They will use the police to hide behind.
Bradford’s absurd and naïve claim that police discretion is the only filter needed to ensure that parents will not be
criminalised for trivial cases involving light smacking etc. deserves the cynical response “Yeah Right!”.
It is noteworthy that on the charges of “ill-treatment” for which Hende was convicted by the District Court and
sentenced to 200 hours community work, the appeal was allowed on a number of counts and a new trial was ordered by the
Court of Appeal. A number of the key verdicts were therefore ordered to be set aside and a new trial was ordered.
The New Zealand public have overwhelmingly indicated via numerous opinion polls that they strongly oppose the repeal of
section 59 and oppose Bradford’s “anti-smacking bill” – one that even if passed, will make no difference to rectifying
the serious problem of child abuse in this country. The SPCS wants the serious problem of child abuse properly
investigated by the government and the real root causes addressed urgently.
ENDS