Thursday, May 17, 2007

Queen's Council, Mr. Illingsworth instructs on the new Section 59

Family First asked leading QC Grant Illingworth for his opinion
regarding the new law.

Mr Illingworth said "The difficulty with the section is that it does not
tell us what "correction" means. In ordinary language, and for most
ordinary people, correction would include preventing a child from
continuing to engage in offensive or disruptive behaviour and preventing
harm to another child. But that cannot be the correct interpretation
because it would mean that the section is self contradictory."

"This means that "correction" will have to be given a somewhat
artificial meaning that does not correspond with the ordinary use of
language. The question is: what will "correction" be held to mean? This
is a question of enormous importance because, if a parent intends
"correction" then, even if the parent would otherwise have a defence,
that defence will no longer be available by reason of s 59(2)."

"The moral of the story is that, in any investigation, it would be
extremely unwise for a parent to admit that she or he was attempting to
correct a child's aberrant behaviour. And if that isn't silly, I don't
know what is."

Mr Illingworth responded to two scenarios presented by Family First, and
how the new law could apply -

1. A child is having a tantrum in the supermarket because mum won't buy
that lolly, and mum gives the child a light smack on the bottom which
brings the child under control. An observer reports the parent to the
police. Does the parent have a defence under s59?

Illingworth QC - The mother who smacks the child lightly in the
supermarket to stop a tantrum is arguably using reasonable force to
prevent the child from continuing to engage in offensive or disruptive
behaviour, so she has an apparent defence so long as her purpose is not
"correction".

2. A child throws a toy at his brother's head. Mum tells him to go to
his room. The child refuses. Mum grabs him by the arm and literally has
to drag a screaming child, who is throwing his arms all around, to the
room. The child tells his school teacher who rings CYF. Does the parent
have a defence under s59?

The mother who drags her child to its room to stop violent behaviour
towards a sibling is also arguably using reasonable force to prevent the
child from continuing to engage in offensive or disruptive behaviour.
She may, as well, be preventing further harm to the other child. She too
has an apparent defence so long as her purpose is not "correction".

"The bottom line is that we have created a confusing law," says Mr
McCoskrie. "This is bad news for good parents who wish to parent within
the law. The good news is that we do not have a blanket ban on smacking
- despite the misrepresentation by the supporters of the law change."

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