My Mummy’s a criminal

I often get a bit tired of hearing about the smacking debate, but just thought it was newsworthy that a website Protect Good Parents went online today.

Administered by the Family First Lobby, it features a video which I’ve embedded here with a bit of a commentary. It features five families that were criminalised as a result of the anti-smacking law and comments on a review by psychologist Nigel Latta, a review that the government has claimed is evidence that that the anti-smacking legislation is "working", because nobody has been criminalised.



Provocatively entitled My Mummy’s A Criminal this 30 minute video aims to show that people were getting investigated, arrested, prosecuted and hassled by CYFS for smacking their children. It shows interviews with smacking parents and how CYFS failed to follow its own procedures in investigating alleged smacking.

One family faced around 15 charges of abuse. It went to court. The lead juror was appalled she had to use her jury service time – almost four weeks - to preside over such a case, only to acquit them of all charges in 25 minutes. The juror says:

I was embarrassed…. I was so embarrassed to be a New Zealander. This poor wee girl that has fallen in love and married her man, ends up in what should be the happiest time of her life being tortured. Who really was cruel.

However, CYFS did not respect the acquittal as this family still do not have their children. There has been no contact for more than two and a half years - that’s eight months after their acquittal.

Another family was having difficulty with one of their children so they went to CYFS for help, but the parent was told the problem was with him - he had an anger problem.

Another parent poked her son with a pen. While that is not really “smacking” it does seem that it is something pretty trivial to get arrested for, and then put in a police cell. After appearing in court four months later, this parent was discharged without conviction because the judge said the pen was used “in a manner which was tapping a child on the back of the hand”.

One family got their kids taken away from them after alleged abuse caused by smacking and later received an apology from CYFS for the way they were treated. Their case was given a “critical” rating, a rating given to cases of rape or broken bones, and normally requires removal of children within 24 hours. Yet their kids weren’t taken away from them until three days later. They are now trying to have incorrect facts about their family in the Latta report [PDF] reviewed.

John Key was asked in 2009 whether a parent who smacked a child on the leg in the back of a car would get arrested. His response?

Well, I don’t think you could get arrested for that.

The video showed an interview of a person who was apparently convicted - not just arrested - for doing just that, although details are rather skant.

The video also mentions the Latta review [PDF] . One of the parents claimed that the review incorrectly states that their daughter was sexually abused; this family is alleging four breaches of CYFS procedure that were hidden from Latta. Another part of the report says that one parent was convicted of assault when he in fact was not.

Lawyer - and Labour Party candidate for Carterton - Michael Bott says the Latta review was a rubber stamping exercise.

Prime Minister John Key also features in the video, as does Labour leader Phil Goff. In 2009 Key said:

If you lightly smack a child, you shouldn’t be prosecuted, and you certainly shouldn’t be investigated. If the law doesn’t work and people do start getting arrested, or start getting prosecuted, I will change the law.

In 2008 John Key said

if we start seeing… good parents being hauled before the courts – then I’m going to do something about it.

John Key was handed a copy of the video on July 8.

Meanwhile latest figures show that 64 children have died while in the care of Child, Youth and Family over the last 10 years. A third were recorded as suicide.

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New video released tonight: Smacking parents get CYF’d and hauled before the Courts

The other week when I was at the Family First Forum, a video was screened that featured a few couples who have been hauled before the courts after being charged with assault after they smacked their kids.

The 30 minute video and associated website is embargoed until midnight tonight and as I have been given advance copies of both I`ll be blogging about them when the embargo has lifted, and will be embedding the video in full.

When I saw the video, it reduced some to tears at the unjust treatment given to smacking parents by authorities.

Some parents have had their kids taken away from them, others still haven’t had them returned. I spoke with one couple who are featured in the video and may blog about their story later, but the video also features legal counsel for one of the families – who so happens to be a Labour candidate for the 2011 election – and a lead juror who presided over a smacking case she considered should never have gone to trial.

The website also features an article in this Investigate magazine which casts doubt on the thoroughness of this Nigel Latta review on smacking.

Anyway, if you have or have had strong feelings or opinions on the section 59 smacking debate, you`ll want to watch this video, no matter what side of the debate you are on.

You`ll get your chance from midnight tonight, when I blog it. The video will either make you angry at the treatment given to these families or annoyed that the treatment has been exposed in video form for the very first time.

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Head Juror speaks out on smacking acquittal

The Head juror in this case has written to Family First's Bob McCoskrie.

What the Star Times didn’t say and Sue Bradford doesn’t know, is the child punched the step-mother in the stomach whilst she was pregnant stating he wished the baby would die. On another occasion, we saw photographs of bruising, cuts and abrasions that the son had inflicted on the step-mother – knocking her to the ground. This was her reward for attempting to prevent the child using a bicycle that didn’t belong to him. After hours and hours of searching they finally brought the child home late at night. He then went on to threaten to kill himself and the other children sleeping in the house. Conveniently, none of this is mentioned in the Star Times article – just the desperate attempts by the father to protect his family and the child from himself portrayed in a way that makes him look like a monster – he is far from it.

The Jury found both the father and the step-mother not guilty on all 15 charges presented in less than an hour.

It was not until after we had delivered our verdicts that we learned the eldest of the children and co-incidentally the boy father and step-mother had struggled with who had travelled to Hamilton for the case with his custodial parent completely trashed the Motel room supplied for their use during the trial. It was three days before the room could be put to rights enough to be used by the Motel for guests.

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Preventing offensive or disruptive behaviour

updated
The Sunday Star Times reports that a jury has acquitted a couple of 15 charges alleging cruelty against children relating to the current “anti-smacking” legislation.

A jury has set a new benchmark under the so-called “anti-smacking” legislation by acquitting a father even though he admitted tying his son to his wrist, shaving his hair off, and washing his mouth out with soap.
The case tested the amendment and showed what a jury would allow in terms of “justified force” to prevent or minimise harm, or to stop the child engaging in “offensive or disruptive behaviour”.

So, what was the punishment for this disruptive behaviour – and under what circumstances?

I grabbed my tie that I wear for church and I tied his wrist to my wrist beside my bed so he couldn’t take off and go and kill himself. Then he did manage to loosen it, so I did tie it around his neck for only about 30 seconds. I admitted to those things in court, but given the circumstances and what I was trying to achieve – trying to stop him killing himself – I was found not guilty.

There are two issues here. One is the use of corrective discipline, the other is the use of non-corrective discipline for preventing disruptive behaviour. The current law allows administration of the latter, not the former. This is the express intent of Parliament, as this amendment from Chester Borrows failed to pass. It would have defined reasonable force equally for both corrective and non-corrective discipline. This definition precludes the use of any weapon, tool or implement - like a tie perhaps.

As this case was discipline, albeit not of a corrective nature, the jury still had to decide whether the force was reasonable in the circumstances (to legally justify it). Sue Bradford considers all physical discipline is unjustifiable, believing it to be unreasonable and unacceptable abuse.

I'm not familiar with the details of the case but the sort of things you are talking about – to me they are all assaults against children. And I think it's really sad that a jury would think that those kind of activities are acceptable.

Bradford doesn’t appear to want to consider whether “these kinds of activities” were to prevent offensive or disruptive behaviour. Bradford’s stated intention in the anti-smacking legislation was to remove force for the purposes of correction,whatever the circumstances, but what she also wanted was to remove any force administered to children.

She failed to achieve this. In this case, based on info from news reports, the decision would have been the same under the old law, but not under the Borrows amendment.Indeed, Bob McCoskrie reveals, among other things that some of the charges were laid under the old law, after a grumpy ex-partner initiated the involvement of CYFS.

Perhaps the intent of Parliament is that most who would have been acquitted under the old law should be acquitted under the current law.If so, police should use discretion a lot more wisely when deciding to prosecute.

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How many people in these cases have been criminalised for smacking?

On 16 May 2007, the anti-smacking law was passed through parliament. Ever since, Family First’s Bob McCoskrie has been trying very hard to get information of people who have been criminalised for smacking. That is because John Key has said that if anyone is criminalised for smacking, he`d change the law.

By criminalised, I assume he means landed with a criminal conviction.

McCoskrie has taken out another full page ad in today’s daily papers, with “compelling evidence” that people have been criminalised for smacking their kids.

Now, I’m no fan of the anti-smacking law, but some of these examples trolleyed out by McCoskrie are not even smacking cases. None have gained a criminal conviction. Granted , some of the cases went to court, but the defence would not have been a smacking defence. In other words, had the Section 59 defence been available, it would most likely not have been used as a defence, let alone succeeded. Therefore police discretion to prosecute was not discretion under Section 59, it was badly used discretion irrelevant to Section 59. The case of a of a 70-year old bus driver taken to court for “ grabbing the arm of a rowdy boy” is not a smacking case, neither is a case where an uncle threw a cushion at his nephew. Yet these cases are claimed to be smacking cases by McCoskrie.

Some are not Section 59, and McCoskrie is wasting his supporters money in leading a misinformation campaign claiming that they are – and claiming that because they are criminalised for smacking (but without a criminal conviction), that John Key should change the law.

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The PM and GST

post has been updated

Radio NZ reports that Prime Min­is­ter John Key says he will can­cel plans to raise GST if evi­dence shows peo­ple will be worse off.He says that should reas­sure the Maori Party, who oppose an increase in GST.

Isn't that a bit like saying that he will overturn the smacking legislation if someone gets prosecuted, which will reassure parents that they will not be prosecuted for breaking the law?

Answer: a little bit, but its going to be very difficult to provide evidence that people will be worse off when GST is raised before GST is actually raised, isn't it?

This, particularly for those on low incomes families, as Key has not declared how much (or even if) Working for Families will rise to compensate for the rise in GST, or how he will compensate low income earners who are not eligible for WFF. [update: he has sort of]. For beneficiaries to be no worse off after a GST increase, benefits will have to go up at least 5 percent, with an increase in WFF on top of that.

Personally, I think some people will be worse off as a direct result of an increase in GST, but because they won't be able to directly attribute that to a GST increase, John Key will stick to his line.

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Does CYFS think a smack is abuse?

CYFS working definition of abuse is:

an act or act that results in inflicted injury to a child or young person.

It may include, but is not restricted to bruises and welts, cuts and abrasions, fractures or sprains, head, abdominal or internal organ injuries, strangulation or suffocation, poisoning, burns or scalds.

The statutory definition of abuse is :

The harming (whether physically, emotionally, or sexually), ill-treatment, abuse, neglect, or deprivation of any child or young person

This means that legislation considers abuse as harm, whereas CYFS working definition states " inflicted injury", and goes on to say in the latest smacking report that CYFS does not believe that smacking constitutes physical abuse, whereas the Office of the Children's Commissioner does.

But a light smack can cause harm, because it hurts. If it doesn't hurt, why smack? An inflicted injury is something more than just harm. No wonder social workers don't know whether a smack constitutes abuse. CYFS management are giving mixed messages, telling their staff that a smack is abusive, but telling the public that it is not.

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So did we need to remove Section 59?

A woman who assaulted her three children over a 21 month period with weapons that included a jug cord, tent pole, belt and wooden spoon during various incidents in Napier, Gisborne and Invercargill has been jailed for 3 and a half years. One of the people hit was a one-year-old boy.

So cases like this is why why section 59 of the Crimes Act, removing the defence of reasonable force for correction, had to go from the statute books, right?

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Don't blame the anti smacking law

Still to read the report. on the anti-smacking law that MSD chief executive Peter Hughes wrote. He said his department was doing really well and he can find no evidence that parents were subject to "unnecessary state intervention" for occasionally lightly smacking their children, although he said he couldn't discount that there was some evidence.

Just three reports of smacking were passed to police in the past three months. Between 2006-2008 substantiated cases of abuse were up from 2274 to 2285, but the ministry was at a loss to know why the rise had happened.

But the smacking legislation was aimed at 'Making better provision for children to live in a safe and secure environment free from violence by abolishing the use of parental force for the purpose of correction',

Has it achieved its aim?

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Human Rights Commission says you are allowed to smack your kids

Hurrah for the Human Rights Commission. The Human Rights Commission says parents are allowed to smack their kids after all.They can even use correction provided that such correction is not "for the purposes" of correction, as long as the purpose is for specified purposes as defined in Section 59 of the Crimes Act.

Such correction could be for non-corrective purposes, like prevention, or for the purposes of being a normal day-to day parent, provided correction itself is not your main purpose of correction.

But if you prevent a child from doing something and correct them using reasonable fore for the purposes of stopping them, that's allowed in the same way as reasonable force was allowed in the old law. If you prevent a child from doing something - like stopping their tantrum - and you prevent them from undertaking in such disruption with a smack for the purposes for correction, that's against the law and not allowed.

This whole hoo-har is a little bit like a teenager inhaling, not for the purposes of utilising his cigarette, but because he wants to look cool with his peers. Should inhalation as part of a good smoke be a criminal offence because others abuse their lungs? After all if this teen smokes twice a month he may go overboard and get lung cancer in six weeks and be investigated by people who investigate suspected cases of lung cancer. He may get his lungs taken away from him for a while so he can't inhale - or give him a plug for his mouth and let him breathe through his nose and put him on a drip. But he must not inhale. Therefore,we should announce a bill banning inhalation, then amend it to a ban on smoking, while saying you can only smoke cigarettes if you don't inhale. We could call it the stupid Clinton law and have a referendum on it.

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On parental correction

Phil Goff has said that a smack as part of good parental correction should not be a criminal offence in New Zealand.

This explains what a criminal offence is. It is an act or a mission with the necessary state of mind that is a crime. A crime is committed when someone breaks the law. A smack as part of good parental correction is against the law, and therefore it is a criminal offence. Goff thinks that it should not be a crime in this country, despite passing a law making it so with a disincentive to obey it.

So will he vote NO in the country's first postal non-binding citizens initiated referendum next month? Probably not, if this letter he signed is anything to go by. The law has not conclusively been a factor in judicial criminal sanctions. Behaviour considered harmful to the moral, political, economic, or social well-being of society is defined as criminal and thereby worthy of formal state sanctions. Goff does not think all smacking is harmful [so why is he happy that it is criminal], whereas the people he wrote to disagree. In this country normal parental physical correction is not worthy of formal state sanctions.

But such behaviour is worthy of investigation by Police as it is against the law. Should a smack as part of good parental correction be a criminal offence worthy of laying charges for prosecution? That was the question that Goff should have been asked. If Goff was to give a similar answer, he would agree that any laws like this should be amended to instruct police not to prosecute, instead of exercising discretion. And of course if you can’t prosecute, there's no discretion in laying charges.

This citizens initiated referendum next month is this country‘s fourth. Labour MP Lianne Dalziel said she may register an informal vote by deleting both options. Maybe Goff will too.

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No Right Turn says there is no time for referendum, and he's wrong

Note: see update at bottom of this post
Helen Clark has said it is unlikely that the smacking petition will have its referendum at the election, whereas No Right Turn says it is impossible. He's wrong. John Key says it is:

about democracy, the right of people to be heard and it's the absolute height of arrogance that the prime minister is going to use a technicality within the law to circumvent people's rights to express their views on the issue.

Hes right. Larry Baldock says there is plenty of time to organise a referendum at the election.

Here's how the process works. The clerk of the House has up to two months to certify the petition, have the speaker present it to the house. Then the Governor General has to set a date within a month. So the latest a date can be set, assuming the petition is valid, is 23 September. The earliest is the day it is certified, which could be next month. So by September 23 the Governor General would want to know the election date.

Then if it the referendum is to be held on Election Day the Governor General must issue a writ up to 60 days in advance. That writ must state the last date for return of that writ, being any day up to the the final day of the 60 day period. [And on this point, No Right Turn , where I got some of this information form, is incorrect when he states that "if the referendum is to be held on election day, that must be done 60 days in advance".]

The process can take five months; but it doesn't have to. The last date the election can be held is November 15, although I recon it will be earlier. So if the election date is announced by 23 September (just under eight weeks before the final available election date), there will be plenty of time to organise an election day referendum.

But the Government can be petty and delay the election announcement til after September 23, while announcing a referendum date for next year on September 23 with the excuse that we don't know the election date so we can't therefore announce an election day referendum.[Clarification: But read this .]

If there's enough time to organise an election, there's enough time to organise a referendum. To set and maintain a date after the election would be the kind of petty politics that No Right Turn apparently approves of - and that approval surprises me, given his views on democracy.

UPDATE: I see No Right Turn has done a correction in line with the above. I have also linked a clarification. NRT maintains the process takes four months. That's not the issue. The issue is the announcement of an election date. If the election date is announced on or before September 23, the referendum date can be announced for exactly the same date. Helen Clark can announce an election date today if she wants to - she can certainly signify that a referendum is to be held at the election once the petition is declared valid, so authorities have more time to prepare.

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Police investigate offences they consider acceptable behaviour

Police have released another review of the Section 59 legislation.

Beth Wood from EPOCH says its all good news. That's because the Police state there is a reduction in smacking events attended in the past quarter. So why does Family First's Bob McCoskrie say there is a substantial jump?


Here's why. Police have divided corrective discipline into "smacking" and "minor forms of physical violence", the latter rate having gone up every quarter. I asked Belinda, who heads the Police team who did the report, what the distinction is between these two categories.

She defined smacking as a corrective smack on the bum with an open hand; which most people - even in the police, but perhaps not Sue Bradford - would view as acceptable discipline. She said there was no difference between smacks and minor forms of physical violence, but agreed that the latter constituted "something more than a smack on the bum" .

Like two smacks, perhaps.Which most people would also view as acceptable. She also agreed that the wording should have been " minor forms of physical discipline" as per the wording of the report and to reflect the corrective aspect of physical discipline, and the majority were of the kind that would be successful in a reasonable force defence in court. Any discipline with an implement is child assault.

So, Police consider most minor forms of physical violence are acceptable smacks. Police investigated over more than cases of corrective discipline since the law change, with an increase each quarter. Two were charged with assault so they were obviously not minor forms of physical violence.

Colin Espiner makes the point that law abiding parents haven't been prosecuted. Well, neither have parents who have been investigated and found to have inconsequentially broken physical discipline laws. Parents are being investigated for things that police view as acceptable, and they are incorrect to claim that they are attending less smacking events.

Mike Hosking does a pretty classic interview with Rob Pope; and also Sue Bradford and doesn`t believe a word she says.

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Smacking referendum likely

Just been advised that the collectors of signatures for the smacking referendum have now got 380,000 signatures. So it looks likely that there will be a referendum. Or will they go to Crown Law for advice - like everything else - once authorities realise that there is enough signatures to force a referendum.

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How easy is that!

Christchurch GP Pippa MacKay, who performs abortions at Lyndhurst Hospital, said she applies the law."If someone says to me they will suffer depression if they have a child, then I accept that." Lets put that into plain English.

So, this is how you have an abortion:
They ask the woman whether having the pregnancy would cause them depression, the woman says “Oh yes it will” and the doctor says “Okay”.

And that's not all...

How to get a sickness benefit
They ask the person if they are sure they have depression and the person says, “Oh yes I am” and the doctor says “Okay”.

How to reduce child abuse
They ask the Children`s Commissioner if a smacking ban will reduce child abuse and she says "Oh yes it will" and Parliament says "Okay".

How to get a civil union
They ask thousands in the the gay community if they will get a civil union if such laws are introduced, they say " Oh yes we will", and Parliament says "Okay".

How to get parole
The Parole Board asks a prisoner if he [or she] will be good if they were to be let out of prison and they say "Oh yes I will" and the Parole Board says, "Okay - we`ll see you in a few years".

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Smacking: and the ODT website

The Otago Daily Times has upgraded its website , so I have added to the RSS feed on Flock.

This story takes a look at a poll on smacking commissioned by Curia for Family First.

In the poll, 48% of parents said they smacked their child in the past year. But what some people didn't know was that Curia did a poll last year as well, with 78% saying they would smack their child.

But a question saying that parents would smack their kids, to them saying that they did smack their kids in the past year is an entirely different question.

Just like I would thump someone if they broke into my house, but I haven't done so in the past year.

That seems to have been lost on some journalists.

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Bradford incorrectly says latest smacking case shows anti-smacking legislation is working

Most people who read this blog ( and so far today thats 800 of you) are aware that I have been opposed to the anti-smacking legislation. However I am also opposed to child abuse, and from what I know about the latest assault conviction - which is as much as Sue Bradford, it appears, and Russell Brown , this person would have been convicted of assault had he been charged before the anti-smacking bill was passed - which is pretty much what Social Development minister Ruth Dyson said today.

The difference is that now there is no defence of reasonable force. Yet the force used to bruise this child, it appears, was not reasonable, so any reasonable force defence would not have been upheld for the brusing - but may well have been for the smacking. So there still would have likely been a conviction.

Unfortunately Brown and Bradford are so blinkered that they don`t realise this - especially Bradford. Bradford said it seemed to be an example of the law being implemented just as MPs who supported the bill intended. Note the word "seemed" In other words she doesnt know, so she is speaking from ignorance.

This case does not show that the anti-smacking legislation is working. Based on the media reports, it indicates that it is irrelevant in this particular case - despitre certain comments from the judge alluding to smacking - as the man concerned got prosecuted for bruising his son, not for smacking him. No bruise, no prosecution. Others have been convicted before the smacking legislation for parental smacking that caused brusiing - this case appears worse as the bruising was an assault before the smacking occurred, and had the bruising occurred but not the smacking, the outcome in court should have been the same even if a reasonable force defence was used.

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Parent finally prosecuted for light smacking

Was told twice today that a parent has been prosecuted for smacking. A father got diversion for giving his kid smacks on bum with his hand after his child was naughty at school. Was told there will be a story in tomorrows paper - and will link to it tomorrow.
UPDATE The article is here. He was actully sentenced to nine months supervision, so the state is going to pay for counselling that was arranged before the conviction. Green MP Sue Bradford has welcomed the conviction, saying the case is a good example of the May law change working as intended. However the only reason the case went to court was because the woman told a relative that the boy had a bruise on his shoulder and that relative told the police. It will be interesting to see what others think because it wil lead to some debate.

What I`d like to know is if the child had bruising on his shoulder, and the smack was on the bum, was he convicted because of the bruise or because of the smack, given that it was the bruise the parent was reported for. If it was because of the bruise when he grabbed his son, the smack was not what he was convicted for and he should have been convicted under the law before the passage of anti-smacking legislation. Furthermore, the paper's headline would be incorrect and if the smacking link had to be made, it should have been "Man's counselling now free after smacking, and Bradfords comments would be based on ignorance.

If the man was convicted for the smacks on the bum, thats a disgrace. The only way to find out is by getting all the court records, something that lobby group Family First should probably be doing now.

But you can bet the police report that is coming out on smacking won't say much about it. That report was requested over a month ago and the OIA request is now with the Ombudsman.

UPDATE The NZ Herald story here has been updated at least four times today. I Just want to make it clear that the counselling was not for the smacking, it was counselling for anger management and apparent marital difficulties. That is now going to be paid for by the taxpayer. I am confident that this case would have been a conviction before the rewrite of Section 59 of the Crimes Act. This is not a case to prove that the new law is working, despite the sentencing judge's comments. Had there been no bruise, there probably would have been no conviction.

NB initial blog first paragraph was written last night (21/11), hence the apparent erroneous title..

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Court overturns Swedish smacking ban

Swedish parents are allowed to smack their children, as long as they dont smack them too hard, according to a recent court decision. A unanimous court ruled that the father's smack did not constitute assault - it was not hard enough to be assault, nor was it done with indifference to the pain it would cause.

It's happend in New Zealand too - except the person got prosecuted by the courts - he was ot allowed to smack his kids lightly - and I`ll link to the story in tormorrows paper when it comes out..

Also here in New Zealand, according to Minister Annette King, when stated laws conflict with parliamentary intent or common sense, we are governed by the law of common sense. So we can smack our kids too. Common sense, really. Well, common to most people outside the House.

UPDATEAs the Herald describes the Annette King Law of Common Sense:

If the law is an ass, then apply the law of common sense. If the law could be interpreted as producing silly outcomes, then assume those were not what the law intended.

Annette King can now kiss her promotion goodbye.
Fark referrals can check this out

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