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Very good commentrary on Bradford Bill at Kiwiblog.

Posted by watchingcyfswatchnewzealand on April 3, 2007

As posted on CYFSWATCH NZ

Very good commentrary on Bradford Bill at Kiwiblog.
Tuesday, 03.04.2007, 08:23am (GMT12)

From the Herald this morning:

“Yesterday, United Future MP Gordon Copeland announced he would be lodging an amendment to the bill to clarify that parents could pick up a child and place it in “time-out”. Ms Bradford said she had not studied the proposed amendment closely, but said the select committee that considered the bill had included an amendment to cover time-out.”

But that isn’t what happened, Sue:

(The following from the Greens website)

The opinion of Peter McKenzie QC:

“Mr McKenzie concludes that under the Crimes (Substituted Section 59) Amendment Bill as proposed by Sue Bradford, carrying a child against his or her will to “time out” or a “naughty mat” will be a criminal act that exposes parents to prosecution for assault. This is because the redrafted defence in section 59(2) provides that “nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction”. For most parents, it is said, a corrective purpose would be the dominant or indeed the only purpose for “time out”.

Comment of the Law commission:

Committee members will recall that, in relation to option 1, the Law Commission was advised by a majority of the members that the outcome sought was a prohibition on the use of any force against children for corrective purposes. We are consequently delighted to receive Mr McKenzie’s independent confirmation that this objective is achieved by our proposed draft.

However, we have a number of points to make in rebuttal of the media debate prompted by Mr Copeland. In particular, we disagree with the assertion that the effect of our draft will be to prohibit time out by exposing parents who use it to the risk of prosecution.

In the example highlighted by Mr Copeland (carrying a child to a “naughty mat” who had been throwing food at the walls), we disagree with his assertion that this is “obviously for the purpose of correction”. We suggest that at least part, and probably a large part, of the parental motive in that scenario relates to “preventing the child from engaging or continuing to engage in offensive or disruptive behaviour”. This is a permitted purpose under our proposed redraft of section 59.

We need to emphasise that, in any given case, the parental motive will be a question of fact that varies in the circumstances of each case. This means that it is impossible for us to provide a blanket reassurance that prosecution will never be appropriate when force has been used to achieve “time out”. It will be a matter for prosecutorial discretion and, ultimately (if the discretion is taken to prosecute) the decision of a jury.

However, in this regard, there is a very important point to note. The “Solicitor-General’s Prosecution Guidelines” require prosecutors, in the exercise of their discretion, to assess the likelihood of achieving a conviction. We suggest that, in the vast majority of “time out” cases, parents will be prompted by a mix of motives, which may include prohibited correctional purposes, but in all likelihood will also include other permitted purposes. It is thus questionable whether in such cases a jury could ever properly convict a parent beyond reasonable doubt, which in turn may tell against the likelihood of prosecution.

It may be that the McKenzie opinion will persuade some that the Law Commission’s advice on this issue produces an unsatisfactory result. However, in our view, it would be a great deal more unsatisfactory to tinker with the proposed draft to try to achieve a more robust exception for “time out”. It could open a loophole for the use of gratuitous force by parents, under a “time out” guise. As we understand the Committee’s majority view, this is definitely not what was wanted.

Yours sincerely

Sir Geoffrey Palmer
President

Well, talk about running in circles.

To summarise: Yes it will, no it won’t, well yes it could, but that’s not what we want, we want it to stop forced time-out.


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