Making Our Children Count
The new Care of Children Act 2004 - Is section 59 of the Crimes Act 1961 Good Law
Judge Peter Boshier
Speech to Save the Children New Zealand, Brentwood Hotel, Kemp Street, Kilbirnie,Wellington
17 June 2005
Making Children Count
Children have always been a central focus of the Family Court. The legislation under which the majority of our work is conducted, the Guardianship Act 1968, states that the welfare of the child is to be the first and paramount consideration.[1] This Act now has only two weeks left to serve before being replaced by the Care of Children Act 2004 on July 1. This is a significant change for the Family Court given the pervasive nature of the cases dealt with under the Guardianship Act. Moreover, it is a significant change for children. The Care of Children Act states among its purposes, the recognition of certain rights of children, and respect for their views.[2]
The Care of Children Act deals extensively with many aspects of children's rights. To cover them all is impossible in this forum. The focus will instead be on the paramount nature of children in Family Court proceedings, and the Care of Children Act's emphasis on increasing children's rights of participation. These two matters impact most directly on making children count in the Family Court.
As Save the Children's constitutional principles are based upon the United Nations Convention on the Rights of the Child (UNCROC), it is important to note the influence of this Convention on the Care of Children Act. UNCROC was not directly incorporated into the Act, as it deals with a greater range of situations than the Act,[3] for example, the provision of free primary education in Article 28. UNCROC was however instrumental in forming the content of the Act, and for will continue to be so for its interpretation.
There will also be some thought given to s59 of the Crimes Act, dealing with physical punishment of children. The predominant opinion internationally is that physical discipline is contrary to UNCROC, which requires the child to be protected from all forms of violence. There is also considerable research that shows such disciplinary methods are harmful from a developmental perspective. Other parenting techniques are available, and should be promoted to recognise both of these concerns.
Care of Children Act: Governing Principles
Putting children first is really the most fundamental principle of Family Law in New Zealand. This direction is currently given by s23 of the Guardianship Act, which provides that the welfare of the child is to be the first and paramount consideration. The Care of Children Act reiterates and strengthens this guiding canon. The paramountcy principle is moved to the front of the Act in s4 to symbolise and remind that it is the pre-eminent matter to consider when making a decision under the Act. Along with the "welfare" of the child, one must now also consider their "best interests", to better comply with international usage, and with the wording of UNCROC.
Paramountcy means that the welfare of the child must guide the outcome. Other factors, such as the needs of the parents, can be considered but are restricted in the weight that can be given to them by the overarching consideration of the welfare of the child.[4] Decisions are then truly child centred.
The Care of Children Act gives guidance on what constitutes the welfare and best interests of the child. This is a major development. The Guardianship Act gave no express guidance, leaving the Court to decide on a case by case basis. It remains the welfare of each particular child that must be decided under the Care of Children Act[5] but there are now a number of factors to be considered as generally in children's best interests, so these should be followed as far as practicable. These principles are heavily influenced by UNCROC, and can be summarised as follows:
(a) the child's parents have the primary responsibility for the child, and should be encouraged to agree to their own arrangements;
(b) the child's relationships with his or her family, family group, whanau, hapu, or iwi, should be stable and ongoing. In particular, the child should have continuing relationships with both parents;
(c) the child's care should be facilitated by ongoing consultation and co-operation among the child's parents and guardians;
(d) relationships between the child and members of his or her family, family group, whanau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child's care;
(e) the child's safety must be protected and, in particular, he or she must be protected from all forms of violence;
(f) the child's identity (including culture, language, and religious denomination) should be preserved and strengthened.[6]
The Care of Children Act reflects a different conception of children and their place within society than existed when the Guardianship Act was drafted. A child is now recognised as being a legitimate person in their own right, rather than becoming so on the attainment of adulthood. The terminology, along with the philosophy of the Act, reflects this. The terms "custody" and "access" are replaced by "day-to-day care" and "contact", to reduce the image of children as the property of their parents. The way in which the Act functions also reflects this change in ethos, particularly with the role given to children in Family Court proceedings. It must also be kept in mind that children, while deserving respect of their rights, are not self-sufficient. This is recognised in UNCROC.[7] Dependence on parents and families is a strong element of children's lives.
The Role of Children in Proceedings
It is an aim of the Care of Children Act to empower children through involving them in decisions they are affected by, as required by Articles 12 and 13 of UNCROC. The most prominent section of the Act dealing with the child's right to participation is s6. This section states the child must be given reasonable opportunity to express their views, and that their views must be taken into account.[8] Many difficulties must be overcome to ensure this right is achieved in the most positive fashion possible. Harm can result to children through anxiety, loyalty conflicts, and damage to family relations if the right to participation is applied carte blanche.[9]
Harms to others could also result. The parent's right to due process must be given careful consideration. Where the views of the child represent evidence that is relied on for the decision, the parties must have access to that evidence, and the chance of examining it. Transparency of Court process, that justice must not only be done, but must be seen to be done, is a key principle of the Care of Children Act. The previously closed environment of the Family Court is being opened up,[10] and reporting of proceedings, with identifying details removed, allowed.[11] It would not be consistent with this evolution to take the views of the child in a closed environment.
Reasonable Opportunity
There will be three ways used by the Court to give the child the opportunity to participate, while allowing for these concerns to be properly addressed. These means will be the same as those currently used but the role of each will need to evolve along with the principles of the Care of Children Act. These are:
1. Through a lawyer appointed to act for the child;
2. Through a specialist report from a child psychologist;
3. By the Judge talking to the child.
With the different personalities and needs of each child, each, or a combination of, the above methods will be appropriate in specific situations. It is a matter of finding what works best given those involved, in order to truly give the child an opportunity to express their views if they wish to do so. Those involved must be sufficiently skilled to be able to engage the child in discussion, as well as properly compute the child's views.
Lawyer for the Child
Counsel for the Child, now to be termed "Lawyer for the Child", has been the most common means for the Court to obtain the views of the child. This will continue under the new Act. The Care of Children Act requires a lawyer be appointed for a child in any proceeding involving their day-to-day care or contact that is likely to proceed to a hearing. There is then an obligation on the lawyer to meet with the child for the purposes of finding out their views, unless this is inappropriate.[12] This obligation was previously a part of best practise,[13] but is now enshrined in legislation to clarify the crucial role the lawyer for the child is to play in ascertaining children's views.
Psychological Reports
A report by a child psychologist has the benefit of involving someone trained to communicate with children, to ensure the child's views are heard correctly.[14] Along with giving children the opportunity to express their views, we also must be able to interpret them correctly. Difficulties can exist where children may have an opinion but do not feel able to express it. This could be because they feel loyalty towards both parents, and do not want to hurt one parent by expressing a desire to live with the other. Or, it could be because they are not comfortable discussing such issues with strangers in what can be intimidating circumstances. A child psychologist can meet with a child in an often more relaxed setting, and perhaps on a number of occasions, which is important to see if the child's views are strongly held, or are somewhat transient. An expert has the advantage that they may be able to ascertain a child's opinion without discussing the subject with them directly.[15] They can also give evidence, unlike a lawyer or Judge, and can therefore be cross-examined, providing accountability for the views they have expressed on the child's behalf.[16]
The Family Court cannot order a psychological report solely for the purposes of ascertaining the child's views.[17] The primary means of introducing the views of the child is to be through the lawyer acting for the child, or by an interview with the Judge. However the use of a psychologist to aid in the evaluation of child's views is an important tool to be used in making sure the views of the child are heard correctly.[18]
Judicial Interviews
Research suggests children are not always happy with how their views are reinterpreted when conveyed indirectly.[19] This is but one reason the Judge talking to a child directly can be invaluable. Other benefits include:
- As a matter of respect for a child to have direct input into decisions that affect them;
- To assist the child understand it is the Judge, not the child, who is responsible for the final decision. This is particularly important where there is divided loyalty;
- Getting the most up to date knowledge of views that can change over time. It could be a year or more since the beginning of proceedings, and children's views can change for a variety of reasons;[20]
- The Judge can get a better appreciation of child as a person and the strength with which they hold their views, more so than just reading a report;
- A child can think of solutions nobody else has thought of that will best provide for their welfare;
- To gain a sense of the child's maturity;
- The Judge is another person that might match the child in terms of establishing a productive relationship.
There are also some potential pitfalls that need to be guarded against including:
- Judges may lack the specific skills that a child psychologist has to elicit and interpret the views of the child. They may not understand the nuances of their communication. This could equally apply to a child's lawyer;
- The child might be silenced by the prestige of the Judge and the situation;
- The Judge cannot be cross-examined so cannot be tested on the evidence gained about the child's views;
- The child may feel responsible for the decision despite assurances otherwise by the Judge;
- Parents might try to manipulate the child once they are aware there will be a meeting with the Judge.
- The Judge may not have enough time to establish a relationship of trust; [21]
In order to deal with the point that effective communication skills are necessary, a session at the upcoming Family Court Judges Conference will be devoted to judicial interviews, and how the best results can be achieved by this means.
It is important for the discussion
between the child and the Judge to be available for the parties to
scrutinise, to ensure their rights of due process are upheld. This can
be achieved by conducting the interview in the presence of the party's
lawyers, or recording or transcribing the interview. This is the
approach I took in a recent child abduction case, where it was
necessary to interview the child.[22]
The key for any person involved in obtaining the views of a child is to
establish a relationship with them that allows for frank and trusting
disclosure. Each child is different, and equally, every member of the
Family Law profession is different. Sometimes a relationship of trust
will be established with one person but not another. For this reason a
team approach is best to ensure that the child involved has the best
opportunity of finding someone with whom they are comfortable to talk.[23]
Guardianship and the Nature of Parenting
The nature of guardianship and parenting is revised under the Care of Children Act in line with the underlying conception of the child discussed earlier. Guardianship is redefined to emphasise parenting is about responsibilities rather than just rights.[24] The exercise of guardianship is described in part as determining, or helping the child to determine, important matters affecting the child. This recognises that parenting responsibilities are not an absolute. They change over time as children grow and mature, and become able to make decisions for themselves. It also encourages parents to involve the child in decisions that affect them, just as the Court must do. This is particularly important if one is to give real effect to the right of the child to participate, as only a small proportion of cases, around 6% under the Guardianship Act, need adjudication. It is crucial that children are given an opportunity prior to a Court hearing to express their views. The Human Rights Commission recently recommended parents should be encouraged to involve children in decision-making that affects them.[25]
Much emphasis is placed on the child's right to know and be cared for by both parents[26] in the Care of Children Act. Shared parental responsibility, as encouraged by UNCROC,[27] is given as a purpose of the Act, as a principle relevant to the best interests of the child, and in the description of how guardianship is to be exercised.[28]
Mode of Dispute Resolution
Alternative dispute resolution is the main way in which family disputes are resolved. This emphasis on agreement rather than litigation is strengthened by the Care of Children Act, with parents encouraged to share responsibilities, and come to their own arrangements without the need to resort to judicial intervention.[29] Research shows that this approach has substantial benefits for children by providing a healthier relationship between the parents and children, and more successful care arrangements compared to those that have to be imposed.[30]
Where a decision must be imposed, children now have a right of appeal to the High Court.[31] This is significant as it recognises that children have a legitimate interest in the decision, as it affects them as much as the traditional parties. There is a duty on the child's lawyer to explain the contents of any order in a language and manner that the child is able to understand,[32] for as recognised in any democratic society, being properly informed is crucial to meaningful participation.
Enforcement of Court Orders
The Care of Children Act strengthens the ability of the Family Court to enforce its orders. This means children's rights are given more teeth, as they can be more effectively upheld. There is an increase in the range of ways the Court can enforce an order, as well as the strength it can employ to do so. The Care of Children Act gives a choice of options to enforce parenting orders through provisions of ascending severity. The Court will have the power to admonish the person in contravention of the order, or vary an existing parenting order, for example, by reducing the time the child is to spend with the party breaching the order.[33] The parties can be required to attend counselling,[34] or the Court can order a person to enter into a financial bond to deter further breaches.[35] The costs of remedying a breach can be ordered against the offending party.[36] The issue of a warrant for the Police to take possession of a child for the purposes of enforcing a parenting order is the final measure atop the ladder, and is to be used as a last resort.[37]
There is an increase in the penalties for breaching a parenting order. The possibility of a prison sentence of up to 3 months has been added, and the maximum fine is increased to $2500.[38] This gives the Police the power to arrest without a warrant any person breaching a parenting order or obstructing the execution of a warrant.[39]
The Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention applies to children under the age of 16 who have been taken from their State of habitual residence contrary to the rights of custody of another person. In other words, international child abduction. In these situations, there is a strong presumption in favour of returning the child to their home State. The Hague Convention was first incorporated into legislation by the Guardianship Amendment Act 1991. This Act is to be replaced by the Care of Children Act.
The Hague Convention protects children from harm through a universal principle rather than on a case by case basis, as the main body of the Care of Children Act aims to do. The preamble to the Hague Convention states wrongful removal or retention of a child is generally harmful, so children should be protected from this harm through expeditious return to their State of habitual residence.
It is presumed the state of habitual residence is best suited to decide what is in the best interests of the individual child, while all children need to be protected from the harms associated with abduction. The Hague Convention is thus primarily concerned with forum rather than the welfare of individual children.[40]
There are exceptions to that presumption, which are:
- that 1 year has elapsed since the removal and the child is settled in the new environment;
- that the person making the application was not exercising their rights of custody;
- the person applying for the return consented or acquiesced to the removal;
- there is a grave risk of exposure to physical or psychological harm, or of placing the child in a situation that is intolerable should they be returned;
- the child objects to returning, and has reached an age and maturity where it is appropriate to take into account their views.[41]
Only one of these exceptions has the potential to open the case to a hearing on the merits, rather than of forum. That is the risk of grave harm upon the return of the child. The words of the section are strong - the risk must be "grave", or the situation "intolerable". In assessing whether there is a grave risk of exposure to harm, one must bear in mind the guiding principle of the Hague Convention that as a universal rule children should be returned to their State of habitual residence to avoid the harms of abduction. Also there is the presumption that it is their home Court that is best suited to decide what is in the interests of the individual.
These principles have been strongly applied in the New Zealand Courts. In the case of A v A[42] the Court of Appeal held that the decision is not about what is in the best interests of the child, but where their best interests should be determined. It was further held that:
"in most instances where the best interests of the child are paramount in the country of habitual residence the Courts of that country will be able to deal with any possible risk to the child, this overcoming the possible defence of the abducting parent."
To establish this defence, the party must show the Courts of the State of habitual residence are incapable of protecting the child from the risk of harm.
The majority of situations where a child has been abducted from New Zealand involve them being taken to Australia. In 2004, 40 applications were made in circumstances where children had been removed, in breach of the Hague Convention, to other countries. Of the total of 40, 30 involved removals to Australia. In the same period, 29 applications were made in relation to children that had been removed in breach of the Hague Convention, to New Zealand. The countries of origin were:
- Australia 22
- United Kingdom and Wales 3
- Netherlands 2
- United States 2
It can be seen from these numbers, that by far, we have our greatest Hague Convention relationship with Australia.[43]
Disciplining Children: s59 of the Crimes Act
It is difficult to gauge the prevalence of the use of physical discipline. About half of New Zealand parents contacted in a recent survey said physical discipline was part of their parenting strategies. Half of those parents - meaning a quarter of all parents - had actually used physical punishment in the three months prior to the survey.[44]
However other studies have also shown about half of parents smack their children at least once a week, and the majority of parents believe it is acceptable to smack children in some circumstances.[45] Despite these findings, the statutory defence of the reasonable use of force for correction of children, as provided by Section 59 of the Crimes Act, is a point of consternation for many people. Section 59 provides:
Section 59 - Domestic discipline
(1) Every parent of a child and, subject to subsection (3) of this section, every person in the place of the parent of a child is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances.
(2) The reasonableness of the force used is a question of fact.
(3) Nothing in subsection (1) of this section justifies the use of force towards a child in contravention of section 139A of the Education Act 1989.
There are two main reasons given against the use of physical punishment. The first is on human rights grounds; the second is that physical punishment is an ineffective parenting tool.
In respect of the human rights argument, UNCROC is the most commonly cited instrument requiring the abolition of physical punishment of children. There is some debate over whether UNCROC does in fact require a complete prohibition on corporal punishment by parents. However the predominate opinion is that it does. The complexity of the issue was recognised here in the Family Court where Judge Somerville noted the possibility, without making any finding on the matter, that the prohibition of violence under Article 19 may not extend to physical punishment applied under Article 5.[46] Under Article 5, parents are able to provide guidance for their children. Article 18 gives parents the primary responsibility for the upbringing of their children, and this responsibility must be respected by the State. The question is then how far the State should intervene into what parents perceive as proper guidance. Article 19 is not paramount to any other Article in the Convention, so it could be argued that the Convention sanctions smacking as a legitimate decision of the parents as part of their primary responsibility for the child's upbringing.[47]
However the majority of the literature on the interpretation of UNCROC places the child's right to protection above the parents' right to discipline their children as they see fit. This is the same 'child first' approach that is so fundamental to the Care of Children Act, so such an interpretation would be consistent with broader Family Law policy in New Zealand. International Law is said to recognise that physical punishment of children is a breach of "human dignity, right to physical integrity, and the right to equality of protection under the law".[48] The special position of dependence of children, and the need for protection above what is usually given to adults, is cited as an anomaly when considering an adult can hit a child but not another adult.[49]
This "child first" interpretation is given particular authority by the backing of the UN Committee on the Rights of the Child. In their reply to New Zealand's Second Periodic Report on the implementation of UNCROC, the Committee spoke of their "deep concern" over the existence of the statutory defence to corporal punishment of children by their parents.[50] Repeal of the section was recommended.[51] The Human Rights Commission of New Zealand in its recent report The New Zealand Action Plan for Human Rights were also of the opinion that Section 59 should be repealed.[52]
Physical Punishment is Ineffective
Research shows that there are almost no positive outcomes of physical punishment. One of the most common reasons given for the use of physical punishment is to get immediate compliance.[53] Research is mixed on whether this works or not,[54] but research is not mixed in finding that the long-term effects of physical punishment are negative. Children's development is adversely affected in a number of ways by using physical punishment. The type of behaviour that parents often wish to stop with the use of punishment, such as aggressive, disruptive, or antisocial behaviour, is actually created by the use of corporal punishment.[55] Rather than being a cure, physical punishment is a cause. Some of the symptoms include:
- Intellectual development is impaired by using physical punishment;
- The relationship between parent and child is harmed, meaning the child does not develop from a strong, safe environment;
- Mental health problems such as depression, anxiety, and psychiatric disorders can be associated with physical punishment;
- Physical punishment does not teach children boundaries. The child often perceives it as anger from the parent rather than the result of an indiscretion. This means moral norms are not learnt, which has major implications for future social interaction.
- Children learn to act selfishly, that is for reasons of personal utility and the avoidance of pain, rather than through moral internalisation;
- It teaches children not to get caught, rather than taking responsibility for their actions;[56]
- It endorses violence as an acceptable way to solve a problem;[57]
- There is an issue that physical punishment can escalate into abuse.[58]
Legal Difficulties: Inconsistency in Legislative Intent
Section 59 offers a possible defence against any offence, not just those covered by the Crimes Act. A parent able to claim the benefit of Section 59 is immune from either civil or criminal action.[59] This leads to difficulties where the intention of other legislation is contrary to the use of physical punishment against children. Section 59 can be used as a defence to a suit under the Domestic Violence Act, even as a defence to a breach of a protection order.[60] Section 59 makes it justifiable to use reasonable force for correction. "Justifiable" means not guilty of any offence.[61] An "offence" is an act or omission for which one can be punished under the Crimes Act, or any other enactment.[62] Breaching a protection order is an act that can be punished under another enactment, so is an offence. However, it may be justifiable under Section 59. A person could have a protection order in place to protect the child from them, but under Section 59 still be able to hit the child for correction. This is clearly contrary to the intention of the Domestic Violence Act, where even hitting an adult in front of a child is considered abuse of the child.[63]
More Effective Means
There are different strategies that both respect the dignity of children, as well as resulting in more positive outcomes than physical punishment. The absolute bottom line is that a warm, trusting, and reciprocal relationship between parents and children should form the basis of their relationship.[64] From this platform children have the greatest potential to develop into healthy adults.
Positive reinforcement has been shown to result in more constructive outcomes than physical punishment.[65] This means rather than just saying what is unacceptable, explaining what is acceptable, and recognising children when they behave well, not only when they do wrong, prove more effective parenting tools than the simple administration of physical discipline. Boundaries and moral realisation can be taught more effectively through rational and clear communication. The Care of Children Act, through the increased provision for children's participation, and the redefinition of the nature of parenting, recognises that children are often more capable of understanding than we currently give them credit for. We must also recognise this in our roles as parents. In a study on the role of counsel for the child, it was found that children are resilient and capable, and are able to reflect on their situation to form views about significant matters. It was stated that almost all assumptions that children are incompetent have been contradicted by research.[66] It is hardly surprising then that children understand and learn much better from clear communication, than they do from physical punishment.
Conclusion
From both a moral and a practical view, sound parenting based on effective non-physical techniques needs to be encouraged. In this way we can respect the rights and dignity of children, and achieve more productive outcomes for children, parents, and society as a whole. This is the aim of the government in its SKIP: Strategies with Kids - Information for Parents public education programme launched in May 2004. This education campaign makes available very helpful resources on techniques that can be used as an alternative to physical punishment. These resources are available at the Ministry of Social Development's website, www.familyservices.govt.nz/our-work/skip/resources.html, or from many community based organisations.
In judicial proceedings, the Care of Children Act is progressive in terms of involving children. It recognises to a greater degree than in the past that cases are not only about children, but that children are an integral part of them. Children are affected by the outcome as much as the adults involved, and for this reason, the Family Court is committed to making children count.
Footnotes
2 Care of Children Act ss3(1)(b) and 3(2)(c)
3 Care of Children Bill, as reported from the Justice and Electoral Committee
8 Other sections dealing with the acquisition of the child's views include ss14(4), 23(4), 61(g), and 106(1)(d).
9 Tapp, P, "Judges are Human Too: Conversation between the Judge and the Child as a means of giving effect to section 6 of the Care of Children Act 2004", p2
13 Practise Note - Counsel for the Child: Code of Practise issued by Principal Family Court Judge Mahony 17 November 2000, paragraph 6.1, and 5.2
15 LexisNexis Family Law Service, Commentary on Custody and Access para 6.115
16 Doogue, J, Blackwell, S, "How do we best serve children in proceedings in the Family Court?" Butterworths Family Law Journal December 2000, pp193-203
18 Caldwell, J, "Case Note: The K v K case", Butterworths Family Law Journal, September 2004, pp275-276
19 Supra note 9 p3. Also see Taylor, N, Gallop, M, Smith, A, Tapp, P, "The Role of Counsel for the Child - Perspectives of Children, Young People and Their Lawyers: Executive Summary" (Department for Courts, April 1999)
20 For an example of a reversal in the children's views see Mr T V Ms H Family Court Kaikohe FP027/16/97 23 March 2005 Judge Clarkson
22 J v M [Child Abduction - Rights of custody and objection] Family Court North Shore FAM 2004-044001857 20 April 2005
25 The New Zealand Action Plan for Human Rights - Priorities for Action: 2005-2010 p9
28 Care of Children Act ss3(1)(d), 5(b), and 16
29 Care of Children Act ss3(1)(a), 5(a), and 16(5)
30 Emery, R et al, "Divorce Mediation: Research and Reflections" Family Court Review, v43 n1 January 2005, p22-37, and Kelly, J, Family Mediation Research: Is There Empirical Support for the Field?, Conflict Resolution Quarterly, v22 n1, pp3-36
31 Care of Children Act s143(2)
32 Care of Children Act s55(4)
37 Care of Children Act ss72 and 73
39 Section 315 Crimes Act gives the Police the power to arrest any person committing an offence punishable by imprisonment.
40 For a recent decision on this matter see Secretary for Justice as New Zealand Central Authority ex parte BPH v HDH FC Lower Hutt, FAM 2004-032-752, 21 December 2004.
41 Care of Children Act s106, Guardianship Amendment Act s13, and Hague Convention article 13.
43 Figures supplied by the Ministry of Justice
44 Ministry of Social Development "Strategies with Kids - Information for Parents (SKIP) Research Report" February 2005
45 Children's Issues Centre, University of Otago, and the Office of the Children's Commissioner "The Discipline and Guidance of Children: A Summary of Research", June 2004, p7
46 Ausage v Ausage [1998] NZFLR 72, 79
47 Hikaka, G, "Section 59 - Repeal or Amend: The Issues and Arguments".
48 Taylor, N, "Physical Punishment of Children: International Legal Developments" (2005) 5 NZFLJ pp14-22, 20
49 EPOCH New Zealand "Five Good Reasons why the Law that Excuses Hitting Children should be Changed" January 2003 p2
50 UN Committee on the Rights of the Child "Concluding Observations on New Zealand's Second Periodic Report on UNCROC" 3 October 2003, para 29.
58 ibid. p10. It also must be noted that the two countries with the lowest rates of child abuse, Greece and Spain, have not banned smacking, so smacking does not inherently develop into abuse (Reid, M, "Anti Smacking Bid Part of Wider Agenda" (Maxim Institute, 10 June 2004) www.maxim.org.nz/ri/smack_debate.html)
59 Ausage v Ausage [1998] NZFLR 72, 77
60 Sharma v Police A168/02, 7 February, Auckland HC, Fisher J
