May 2006

Will parents be criminalised?

Organisations which support repeal report that the MPs spoken to generally accept that hitting children is ineffective and associated with poor outcomes. Many accept that section 59 is a discriminatory and inconsistently-applied law. But many MPs (and their constituents) are fearful that repeal will lead to "good" parents being criminalised for minor assaults if section 59 is repealed.  There is still considerable interest in amending section 59 to describe how children can be hit.

EPOCH believes prosecutions for minor assaults are unlikely to happen with the repeal of section 59 because:

  • People will still only make complaints when the assault is serious (as at present)
  • Police have discretion about what matters they prosecute
  • In order for a prosecution to be successful there needs to be evidence of a crime - and young children may be reluctant to, or incapable of, giving evidence in court.

Children must come first. Measures to protect adults are unacceptable if they describe the use of any physical force in child discipline as reasonable (or unreasonable) or justified. It is wrong to endorse using physical discipline.
The following passage is from a Cabinet Paper released under the Official Information Act:

(Section 59 of the Crimes Act 1961: Legislative Options, (POL (03) 39), Wellington, 17 March 2003, p 10)

"Prosecutions of one-off trivial offences are unlikely."

"There are significant safeguards in the justice system to minimise the risk of       parents being prosecuted for trivial offences and it is not feasible or necessary         to develop a specific mechanism to manage this risk.  

Current safeguards include: 
- The range of options other than formal prosecutions available to Police, including warnings and cautions.  It is probable that complaints involving very minor assaults, particularly for parents/caregivers who had not come to Police attention before, would be dealt with through these options. 

- The Solicitor-General's Prosecution Guidelines, under which a prosecution  should only proceed where there is sufficient evidence and it is in the public interest.  These guidelines, coupled with prosecutorial independence in relation to such decisions, suggest that prosecution of a parent/caregiver for a trivial offence is unlikely."