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SCOOP: Caregivers will be Criminalised

Posted by watchingcyfswatchnewzealand on April 28, 2007

Source: SCOOP

Caregivers will be Criminalised


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


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