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Thumbs down for Chester Borrows’ proposal

Posted by watchingcyfswatchnewzealand on March 8, 2007

Thumbs down for Chester Borrows’ proposal

7 March 2007Media release: Thumbs down for Chester Borrows’ proposal

Today, community groups working with children and families gave the thumbs down to National MP Chester Borrows’ proposal to amend Section 59 of the Crimes Act.

The groups include Unicef New Zealand, Save the Children New Zealand, the Royal Plunket Society of New Zealand, Barnardos New Zealand, the National Collective of Independent Women’s Refuges and EPOCH NZ.

“The community groups have examined the proposal using a range of criteria including the level of protection offered children, the clarity for parents of the proposed law, its fit with current government parenting initiatives, and misuse of Section 59 by some private religious schools,” said John Bowis, Executive Director of Save the Children New Zealand.

“Regrettably, we conclude that it is seriously flawed,” he continued.

Chester Borrows has said that he is seeking to provide clarity in the law by replacing the old subjective phrase of ‘reasonable in the circumstances’ with the new one of causing only ‘trifling and transitory’ harm.

“The new phrase may be clear to lawyers and judges, but it is a novel concept for parents and parent educators,” said Beth Wood of EPOCH NZ. “Asking parents who are frustrated, exasperated and perhaps angry, to remember in the heat of the moment to keep it trifling and transitory is not going to help.”

“One of the more alarming aspects of the proposal is its failure to distinguish between a robust and boisterous eight year old, a teenager approaching adulthood or a three week old baby. All potentially could be struck in a trifling and transitory manner under this proposal. Equally alarming is the possibility of blows to the head, neck or other sensitive parts of the body,” she noted.

The proposal is a serious attempt to address the dual concerns of limiting the physical punishment of children while keeping loving and conscientious parents out of court.

“Unfortunately we conclude it will have the opposite effect,’ said Murray Edridge, Chief Executive of Barnardos New Zealand. “We anticipate court cases in which there are arguments over such questions as whether a folded newspaper used on a two year old is a ‘weapon, tool, or other implement; or whether it is ‘cruel, degrading or terrifying’ to smack a 15 year old.”

“Given so many serious flaws in the proposal, there is no way child and family sector groups will support it,” he concluded. “It may seem a superficially attractive compromise, but we do not need to see the hitting of children entrenched in our statute book. Nor do we need a law change that will introduce new uncertainties for parents and will probably lead to more rather than fewer court cases.”

“What we do need is a clear and decisive legal statement on the importance of keeping children safe and nurtured.”


A full copy of a briefing sheet issued to all MPs and providing a detailed analysis of Chester Borrows’ proposal, is attached.

See… MP briefing sheet on Chester Borrows amendment (PDF)

Section 59 of the Crimes Act – MPs’ briefing sheet no.4

Assessing the Chester Borrow’s



This briefing sheet examines the Chester Borrow’s proposal using a wide ranging set of criteria. It concludes the proposal is flawed because it —

Does not fully protect the child

Is likely to confuse parents rather than clarify the law

Retains a number of provisions capable of subjective interpretation in


Sends a public message which is inconsistent with government

parenting and anti-family violence messages

Does not prohibit misuse of section 59 by some religious schools

Is silent on the common law defence

Is in breach of New Zealand’s international obligations

Lacks congruence withother major legislationprotecting children.

This briefing sheet has been provided by the following organisations —

• Barnardos NZ


• National Collective of

Independent Women’s


• Plunket

• Save the Children NZ

• Unicef

The Chester Borrows proposal for amendment of Section 59 of the Crimes Act will be considered when the Crimes (Substituted Section 59) Amendment Bill is considered in Committee of the Whole, probably on Wednesday, 14 March.

The proposal legalises the use of force in parental correction of children provided the force used does not ‘cause or contribute materially to harm that is more than transitory and trifling’; involve any weapon, tool or other implement; and is not cruel degrading or terrifying.

The proposal is a serious attempt to address the dual concerns of limiting the physical punishment of children while protecting loving and conscientious parents from needless prosecution or fear of prosecution. It has therefore been studied carefully by child and family organisations.

Regrettably, we conclude that it is seriously flawed.

In undertaking an assessment of the proposal we have used the following criteria —

Legal protection from assault

Protection of parental restraint practices

Legal clarity

Message to the public

Fit with positive parenting initiatives

Misuse of S.59 by some religious schools

Removal of any common law defence

Protection of the whole child

Protection of children of all ages

International obligations

Legislative congruence.

Our assessment using these criteria is set out below. It is our hope that all MPs will find this briefing sheet useful as they prepare for the next stage in the passage of the Crimes (Substituted Section 59) Amendment Bill.

Legal protection from assault

If the Borrows proposal became law, children would still not have the same protection from assaults as adults under the law. The current statutory defence available to parents who hit their children for correction purposes would continue — although now restricted to the most minor forms of assault that do not involve the use of weapons, tools or implements.

Protection of parental restraint practices

There are a number of parenting practices which technically are breaches of the Crimes Act — restraining toddlers while dressing them, picking up a child and carrying them away from the situation where they are being disruptive, ‘time out’ practices, and so on.

Comparing the two Crimes Amendment Bills

Such practices remain as technical breaches of the Crimes Act under the Borrows proposal.

Legal clarity.

The proposal fails this test in a number of ways.

First, while ‘transitory and trifling’ is a legal standard which may well be understood by lawyers, police and the courts, it is a novel concept for parents, parent educators and in contemporary parenting practice. Far from clarifying the legal situation for parents, the proposal introduces a new confusion. Parents will know that they can hit children legally but will have to judge whether the punishment they are inflicting will cause harm greater than transitory and trifling — unrealistic in the context of parental frustration, exasperation and anger.

Second, the proposal introduces a range of new terms which are likel to be subject to legal dispute in court — Is a folded newspaper, for example, a ‘weapon, tool, or other implement’? Is it ‘cruel, degrading or terrifying’ to smack a 15 year old?

A similar standard set by the Supreme Court of Canada has resulted in some significant parental assaults being judged transitory and trifling, for example, — · A mother who hit who six year old daughter twice on the shoulders and then struck her in the mouth with the back of her hand was acquitted (R. c. D. P. [2004] J.Q. No.10753, Quebec City, Sept.10/04, Judge Dionne).

· A judge acquitted a mother who slapped her 13 year old daughter in the face (R. v. D. K., [2004] O. J. No. 4676, Ontario, Toronto, Sept 24/04, Judge Sutherland)

· An 8 year old’s father who had ‘spanked’ the boy leaving bruising of the lower back and buttock region covering an area four inches by seven inches was also acquitted (R. v. J. D. B,[2004], A. J. No. 814 Alberta, Calgary, July 8/ 04, Judge Wilkins).

Third, the amendment does not define ‘harm’. It allows physical punishment that causes harm assessed as trifling or transitory. Yet such punishment of a sensitive or traumatised child can cause serious emotional harm. Perhaps, such action would be illegal if it could be proved that it was ‘terrifying’ to the child. But that introduces another subjective concept that would need to be argued in court.

Message to the public

Continues to send a message to the public that some smacking and hitting is OK.

Fit with positive parenting initiatives

There is at present multi-million dollar expenditure on SKIP (Strategies for Kids, Information for Parents) and family violence messages. These messages promote non-violent positive methods of parenting. Clearly, a law change that legalises the light hitting of children fits poorly with these government programmes.

Misuse of S.59 by some religious schools

Some private religious schools, committed to the use of physical punishment in school, have been getting around the law by having the parents physically punish the children for the schools. Such a practice could continue under the Borrows proposal.

Common law defence

The proposal is silent on the issueof any common law defence. It is unclear how common law would apply under the proposal

Protecting the child’s whole body

Children can still be struck on the head and neck and other sensitive parts of their body and threfore are at risk of serious injury. Angry parents are not always able to judge what force will cause injury.

Protecting children of all ages

Under the proposal all children can be smacked — logically, even babies, teenagers, and children with disabilities in the care of their parents — as along as the assault does not cause more than trifling and transitory harm. But the impact of such assault may not be well understood and may result in serious loss of trust and incite aggression in the child.

International obligations

New Zealand would remain in breach of international human rights obligations under the UN Convention on the Rights of the Child and the Convention against Torture.

Legislative congruence

The proposal is not congruent with the principles and/or provisions of the Children, Young Persons and Their Families Act 1989, the Domestic Violence Act 1995, and the Care of Children Act 2004. Currently these laws do not fully protect children from parentalassault because of Section 59.


One Response to “Thumbs down for Chester Borrows’ proposal”

  1. Craig said

    The main point of repealing section 59 is the destruction of parental authority. Plato’s ideal was a society comprised of individuals and the state. The cultures which emphasise the family as the owner of the children are directly attacked by this religious view. The Facist ideal proposed by the Nazis and fought against in the two world wars is now forced upon us by elements in the UN and our own Government. Section 59 has never been and cannot be used as a justification for abuse. Only by equating all physical punishments as child abuse can justification for a law change be made. If Labour allowed our democratic system to function as it was designed and allow its MPs to have a conscience vote then some of them would fairly represent their electorates and this bill would not pass. A well deserved caning can restore a rebellious teenager to full relationship with it’s family- a neglect of the same shows the parents do not care and ultimately leads often to suicide and always to antisocial behaviour. Chester Burrows does not support the level of parental authority needed to correct a rebellious teenager. New Zealnd needs fewer rebels and less youth suicide- repealing section 59 will give us the opposite.

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