Parents criminalised under New Zealand smacking ban, top law firm finds

  • Study highlights case of UK national who was convicted of smacking and had children taken away
  • Campaigners warn Welsh families will be next if law changes
  • CPS data reveals “reasonable chastisement” defence used in just three court cases in England since 2009 and none in Wales

A top law firm has concluded that banning smacking in New Zealand has criminalised ordinary parents and campaigners warn a similar ban in Wales would do the same.

The legal analysis, from public law specialists Chen Palmer, is a detailed assessment of the law in New Zealand.

It criticises the confusing legislation and a failure to issue clear guidance to the police. It said statements made by politicians in 2007 who claimed changing the rules would not criminalise parents were simply wrong in law.

Lowri Turner, a spokesmum for the Be Reasonable campaign, commented:

“This should act as a wakeup call to every parent in Wales of the possible consequences if the Assembly presses on with its plans for a ban. It highlights cases where parents have been arrested, prosecuted and even convicted for gently smacking their children.”

Commissioned by the charity Family First NZ, the report found that repeated statements made by politicians saying amending section 59 of the Crimes Act would not criminalise ‘good parents’ for lightly smacking their children were “inconsistent with the legal effect of section 59 and the application of that section in practice”. [Page 19]

The report states: “the amendments to section 59 have criminalised parents who smack their children, even if only lightly, for the purposes of correction”. [Page 3]

The report sets out a series of problems with the ban, citing comments made in Appeal Court and High Court rulings.

In one such case, a former UK national, referred to as “DC”, admitted gently smacking his two sons and was convicted. The Court of Appeal later quashed his conviction but DC lost custody of and contact with his sons.

FOI: CPS data shows zero uses of reasonable chastisement defence in Wales

The legal analysis is published as a freedom of information request to prosecutors in England and Wales reveals that between 2009 and the end of 2017 there were just three cases where parents cited “reasonable chastisement” as a legal defence.

The data from the Crown Prosecution Service confirmed the three cases “all emanated from England; no cases came from Wales”.

The freedom of information request provides further proof that the current law in Wales is working and does not need changing.

Lowri Turner concluded:

“Changing the law in Wales would lead to ordinary parents being criminalised, not least because what is being proposed by the Assembly is more extreme. While parents in New Zealand are allowed to use force in some limited circumstances, this would not be the case in Wales. Indeed as the former Children’s Minister Leighton Andrews admitted in 2015, the effect of changing the law would not only criminalise smacking, but also any contact for the purpose of disciplining a child. He went on to use the example of a parent who forcibly lifts a misbehaving child from the floor, saying that they would be guilty of battery.

“At the same time our freedom of information request confirms that there has not been a single recorded case in nearly 10 years in Wales where reasonable chastisement has actually been used as a legal defence. This shows the law is clear, understood by parents, the police, lawyers and prosecutors and works rather well. Everyone knows what reasonable chastisement is and what unreasonable chastisement is. The current law is firm enough to protect children and fair enough to protect parents.”