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NZ Herald: Change may force parents to think twice.

Posted by watchingcyfswatchnewzealand on May 4, 2007

As posted on CYFSWATCH NZ

NZ Herald: Change may force parents to think twice.
Friday, 04.05.2007, 07:44am (GMT12)

Change may force parents to think twice

 12:00AM Friday May 04, 2007
By Errol Kiong 

Parents will be breaking the law when they smack their children, but the new bill will not see a rash of mums and dads hauled before the courts, law experts say.

Sue Bradford’s anti-smacking bill is set to pass into law after the National Party agreed to a compromise that enshrined the police’s discretion to prosecute – powers they already have.

“What the last-minute amendment achieved was probably no more than providing comfort to police and to parents in circumstances where the force was minimal that there was no benefit to be obtained by prosecution,” said Jonathan Krebs, convenor of the Law Society’s criminal law committee.

The same cases of bona fide child abuse brought before the court under the old law will be same ones that appear under the new law, said Mr Krebs.

“There;s been a lot of hype about the police waiting to pounce in the supermarket for the mother who smacks the child’s leg when he’s tried to jump out of the trolley and hurt himself. In reality, I don’t expect those will ever see the light of a courtroom.

“What this might force parents to do over time is to think about other parenting options, other discipline options. I guess that’s a good thing.”

Parents who smack would still be breaking the law.

“Technically they always have been. In the past it’s been easier for them to establish a justification for it … There is no justification any more for it. What exists now is this argument that if it’s trifling or inconsequential then the police don’t have to prosecute.”

Mr Krebs said the amendment enshrined the police’s discretion to prosecute.

“In my personal view, the legislation without that would have been wrong.

“The trouble with these things is that there are a lot of difficult cases out there, a lot of hard cases or extreme cases where the results appear on the face to be not right, and I think it’s those cases that have prompted all this. And there’s an old adage that hard cases make bad law. I expect that might be a bit of what’s happened here.”

Associate Professor Scott Optican of the Auckland University faculty of law said the new bill was not as clear as it intended to be.

“From my point of view, it is better for people to know what is prohibited or not prohibited by law rather than saying you can engage in this behaviour but you risk prosecution depending on if the cops think it’s bad enough.”

The police have welcomed the amendment, and will be issuing a “practice note” to staff as soon as the law is passed.

Bill & amendment

The new bill sees every parent and guardian justified in using force if it is reasonable in the circumstances and is for the purpose of:

(a) preventing or minimising harm to the child or another person; or

(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or

(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or

(d) performing the normal daily tasks that are incidental to good care and parenting.

It does not justify the use of force for “the purpose of correction”, so parents who smack will be breaking the law.

The amendment, however, makes it explicit that the police have the discretion not to prosecute if the offence is considered to be inconsequential – powers they’ve always had.

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