Legal Analysis Sets Up Challenge To Smacking Law

SMACKING CASES HIT GOOD PARENTS – Legal Expert
Media Release 17 Nov 2014

An independent legal analysis of court cases involving prosecutions for smacking since the anti-smacking law was passed has found that the anti-smacking law is complicated, difficult to apply, and lower courts are getting it wrong.

The analysis by Public Law Specialists Chen Palmer also says that statements made by politicians to the effect that the new section 59 does not criminalise “good parents” for lightly smacking their children are inconsistent with the legal effect of section 59 and the application of that section in practice.
<<READ THE FULL LEGAL ANALYSIS>>

The review of cases by prominent constitutional lawyer Mai Chen was obtained by Family First NZ which has been campaigning against the law and calling for amendments to protect good families and parents.

“With the amount of time and investment that Family First has invested in this issue over the past 7 years in order to protect good parents from a flawed law, we felt it was time to get a completely independent expert legal opinion of whether our concerns held any merit. Our concerns and efforts to get the law fixed have been completely justified,” says Bob McCoskrie, National Director of Family First NZ.

“It also flies in the face of assertions made by the Prime Minister John Key, the police, and the ‘Latta Review’ which argued that none of the cases highlighted by Family First to ‘bolster their argument that good parents were being made into criminals for smacking stood up to scrutiny’. The Review has again been proved to be worthless.”

Key statements in the Opinion also include:

  • “An analysis of section 59 and the relevant case law shows that non-lawyers, including parents and the Police, struggle to understand and apply section 59. The cases also demonstrate that even lawyers and judges struggle to apply section 59 correctly, with examples of cases going to the District Court, the High Court and then being overturned by the Court of Appeal.”
  • “Case law confirms that the section 59 amendment has criminalised the use of force by a parent against their child for the purposes of correction.”
  • “Parents will struggle to know whether their actions constitute an offence under section 59 or not, and in cases of doubt, the police will prosecute and leave it up to the Court to determine.       This is demonstrated in the cases we have analysed.”
  • “The law is complicated and difficult to apply, such that even the lower courts are getting it wrong.”
  • “Smacking a child for the purpose of correction is illegal regardless of whether the Police decide to prosecute or not.” – despite John Key telling parents that a light smack is ok.

Family First will now ask the government to honour their promise that if good parents were criminalised, they would change the law. Family First will also seek further legal advice on challenging the law.

“It is disappointing that the politicians have been so quick to mislead kiwi families,” says Mr McCoskrie.

“The smacking law has been so bereft of success that supporters have had to commandeer a claim that no-one has been prosecuted by it – which has now been shown to be patently false.”

NOTE: A number of the cases profiled have been included in our two documentaries – see www.protectgoodparents.org.nz (My Mummy’s a Criminal 2011 & Mum on a Mission 2014)

ENDS