Lawfulness of corporal punishment

Home

Corporal punishment is unlawful in the home. The Crimes (Substituted Section 59) Amendment Act, passed by parliament in May 2007 and expected to be in force from July 2007, repeals the legal defence for the use of reasonable force “by way of correction” enshrined in section 59 of the 1961 Crimes Act. It substitutes a new provision on parental authority which allows the use of reasonable force for purposes of protection from danger or prevention of damage to people or property (section 1) but states clearly that “nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction” (section 2). The law also explicitly recognises the standard police practice of exercising discretion as to whether or not to prosecute in very minor cases where there is no public interest in proceeding: “(4) To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.”

In June 2007 the police were issued with guidelines on how to enforce the prohibition, under which parents who regularly smack their children despite warnings face prosecution. Parents found to have used “minor, trivial or inconsequential” force and not charged will have their details recorded by poice family violence co-ordinators. What is considered “inconsequential” will be up to the courts to determine in test cases. A booklet on positive parenting was published in December 2007 by the child, Youth and Family Agency of the Ministry of Social Development.

Schools

Corporal punishment is prohibited in schools in the Education Act (1989, amended 2007), article 139A of which prohibits “the use of force, by way of correction or punishment, towards any child enrolled at or attending a school, institution or centre by any employee of the school or anyone supervising or controlling students on behalf of the school”.

Penal system

Corporal punishment is unlawful as a sentence for crime. Under the New Zealand Bill of Rights Act, persons should not be subjected to “degrading or disproportionately severe treatment or punishment” (article 9). The Crimes of Torture Act prohibits the imposition of cruel treatment or punishment on a child.

Corporal punishment is unlawful as a disciplinary measure in penal institutions. The New Zealand Bill of Rights Act states that a person deprived of liberty should be treated with humanity and respect for the inherent dignity of the person (article 23). Other applicable laws are the Children, Young Persons and their Families Act, the Children, Young Persons and their Families (Residential Care) Regulations (1996), the Crimes Act, the Penal Institutions Act (1954) and the Penal Institutions Regulations (1999).

Alternative care

Corporal punishment is unlawful in alternative care settings. It is prohibited in pre-school settings and early childhood centres under article 139A of the Education Act (see above). Corporal punishment is prohibited in state day care institutions by regulations under the Children and Young Persons Act and in residential institutions by Regulation 22 of the Children and Young Persons (Residential Care) (1986) and Children, Young Persons and their Families (Residential Care) Regulations (1996). The Crimes (Substituted Section 59) Amendment Act also applies (see above).

Workplace

Corporal punishment is unlawful in situations of child employment.

Prevalence research

As part of the Government’s Strategies with Kids: Information for Parents public education programme, designed to promote alternatives to corporal punishment, the Ministry of Social Development commissioned telephone interviews with 612 parents and 539 caregivers of children up to 5 years of age nationwide in 2004. Overall, 51% of parents and 21% of caregivers reported using physical discipline, with this being more likely the lower the level of education and higher the number of children (for parents) and with decreasing household income and increasing age (for caregivers). The most common form was smacking on the bottom (45% parents, 32% caregivers). 25% of parents using physical discipline were not interested in receiving information on parenting. (Gravitas Research and Strategy Ltd, for the Ministry of Social Development, 2004, Strategies with Kids – Information for Parents (SKIP) Strategy Development Research: Parent and Care-giver Survey Report, draft report)

In 2001, a telephone survey of 1,000 adults commissioned by the Ministry of Justice and carried out by the National Research Bureau Ltd (NRB) revealed that 80% of parents believed smacking with an open hand should be legally permissible, but 85% were against the use of a wooden spoon or belt, and 98% believed hits to the head and neck area should not be allowed. Physical punishment that causes marking, bruising or injury to a child was not considered acceptable by almost 95% of respondents. When asked about the age of children it should be acceptable to physically punish, 62% believed it acceptable to punish those aged 2-5 years (64% women, 60% men), over half (52%) believed it acceptable for children aged 6-10 years (67% women, 76% men), 43% felt it acceptable for children aged 11-14 years (35% women, 51% men), and 16% for 15-17 year olds (14% women, 18% men). Almost one in four (23%) thought it was acceptable to physically discipline children below the age of 2 years (26% women, 19% men). (Carswell, S., 2001, Survey on public attitudes towards the physical discipline of children, Wellington, NZ: Ministry of Justice)

One study asked 99 parents of schoolchildren to respond anonymously, via their home computers, to 12 scenarios about disciplining a child aged 8 years or younger. Parents were asked to rate punishments according to severity and to the frequency which they themselves used them on their own children. The punishments ranged covered mild (slap on the hand, poking), moderate (spanking, pulling by the arm), and what social workers termed “borderline abusive” (hitting with an object). (Rodriuez, C. M. & D. Sutherland (1999), “Predictors of parents' physical disciplinary practice”, Child Abuse and Neglect, 23(7), pp. 651-657. Cited in  Nogami, N., 2005, Discipline and punishment of children: a rights-based review of laws. attitudes and practices in East Asia and the Pacific - Save the Children Sweden Southeast Asia and the Pacific, regional submission to the UN Secretary General's Global Study on Violence against Children, Stockholm, Save the Children Sweden)

The Christchurch Health and Development Study, a longitudinal study of a birth cohort of 1,265 children born in 1977, included the collection of data from 18 year olds of their recall of punishment before the age of 16 years. Out of 1,025 responses, nine out of ten young people reported having received punishment at the hands of their parents: 77.7% said both parents seldom used physical punishment, 7.6% said at least one parent used physical punishment regularly, 2% said that at least one parent used physical punishment too often and too severely, and 1.9% said at least one parent treated them in a harsh and abusive way. One in ten (10.8%) said they had never been physically punished by their parents. In terms of specific forms of punishment, 56.4% reported regular frequent smacking, 30.8% regular hitting around head or body with fists, 29.5% regular hitting with a cane, strap or similar object, and 23.1% receiving a regular severe beating. Over a third (35.9%) reported being injured as a result of physical punishment. (Fergusson, D.M. & Linskey, M.T., 1997, “Physical punishment/maltreatment during childhood and adjustment in young adulthood”, Child abuse and neglect, vol. 21, no. 7, pp.617-630)

In 1993, The Listener/Heylen Monitor polled 1,000 home occupiers aged 15 and over on the acceptability of corporal punishment, and found that 49% supported corporal punishment for girls, 54% for boys. This was reported as representing a significant decline in support of physical punishment since its abolition in schools in 1990. (Physical Punishment in the Home in New Zealand, 1993, available from the Office of the Commissioner for Children)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“While acknowledging the attention that the State party has given to the implementation of the recommendations contained in the Committee’s previous concluding observations (CRC/C/15/Add.71) adopted following the consideration of the State party’s initial report (CRC/C/28/Add.3), the Committee is particularly concerned about … the prohibition of corporal punishment and the establishment of mechanisms to ensure the recovery of victims of ill-treatment and abuse (para.29).

“The Committee reiterates those concerns and urges the State party to make sustained efforts to address those recommendations contained in the concluding observations on the initial report that have not been implemented….

“The Committee is deeply concerned that despite a review of legislation, the State party has still not amended section 59 of the Crimes Act 1961, which allows parents to use reasonable force to discipline their children. While welcoming the Government’s public education campaign to promote positive, non-violent forms of discipline within the home, the Committee emphasizes that the Convention requires the protection of children from all forms of violence, which includes corporal punishment in the family and which should be accompanied by awareness-raising campaigns on the law and on children’s right to protection.

“The Committee recommends that the State party:

a) amend legislation to prohibit corporal punishment in the home;

b) strengthen public education campaigns and activities aimed at promoting positive, non-violent forms of discipline and respect for children’s right to human dignity and physical integrity, while raising awareness about the negative consequences of corporal punishment.”
(27 October 2003, CRC/C/15/Add.216, Concluding observations on second report, paras. 4, 5, 29 and 30 (a and b))

“The Committee expresses its concern at the authorization provided by section 59 of the Crimes Act to use physical force against children as punishment within the family, provided that the force is reasonable in the circumstances. Moreover, the Committee notes the insufficient measures taken to address the issue of ill-treatment and abuse, including sexual abuse, within the family, as well as issues of physical and psychological recovery and social reintegration of children victims of such ill-treatment or abuse.

“The Committee recommends that the State party review legislation with regard to corporal punishment of children within the family in order to effectively ban all forms of physical or mental violence, injury or abuse. It further recommends that appropriate mechanisms be established to ensure the physical and psychological recovery and social reintegration of children victims of such ill-treatment and abuse, in the light of article 39 of the Convention.”
(24 January 1997, CRC/C/15/Add.71, Concluding observations on initial report, paras. 16 and 29)

Committee Against Torture

“The Committee recommends that the State party:

e) implement the recommendations made by the Committee on the Rights of the Child (CRC/C/15/Add.216, paras. 30 and 50) …”
(11 June 2004, CAT/C/CR/32/4, Concluding observations on third report, para. 6 (e))