Legal idea to ease parents' fears over anti-smacking bill

Legal academics supporting a bill to repeal the defence of reasonable force against children have drafted a change to ensure parents cannot be prosecuted unreasonably.

Opponents of Green MP Sue Bradford's Crimes Act amendment say it will make criminals of parents who could be prosecuted for smacking their children or even for restraining them.

Ms Bradford said that was not how the bill would be applied.

She wanted the change to prevent any more cases of people escaping conviction for attacks on children with whips, pipes and pieces of wood.

Victoria University of Wellington law professor and family law expert Bill Atkin and law lecturer Fran Wright made a submission to the Justice and Electoral Select Committee hearing yesterday in support of the bill.

"We do not agree that parental discipline should be a justification for violence and thus a defence to various offences against the person," they said.

But there was a legitimate concern that under the Crimes Act, a parent restraining a child having a tantrum or to stop them running on a road could get into trouble.

"It is important for parents to know what the limits of permissible conduct are so that they can modify their practices if necessary," the two academics said in their submission.

They were concerned that if it were left to police to decide when to prosecute there could be regional variations.

"Further it is not necessarily the case that discretion would be exercised. The decision whether to prosecute in ordinary criminal cases rests with the police."

Police had to decide if there was a prima facie case and if prosecution was in the public interest.

"In the context of a campaign against the use of force by parents towards children it might be considered undesirable to dilute the effect of the new rules through selective enforcement."

Also, parents could still face civil claims.

The pair proposed redefining assault in the Crimes Act, spelling out where it was acceptable to use force or restraint against a child.

"This amendment would clarify that not all physical contact or restraint is unlawful."

It would also provide clarification that a parent who used a small amount of physical force in the course of providing care and protection for a child would not be found to have committed a criminal offence.

- NZPA