Parental control and the child's right not to be hit

Abstract

This thesis is an examination of the Crimes (Substituted Section 59) Amendment Act 2007 with respect to children's rights, specifically the right not to be hit. New Zealand's journey towards the abolishment of physical punishment was fraught with public concern and misunderstanding. Consequently, a full repeal of s59 of the Crimes Act 1961 was abandoned in favour of a substitution provision that would do away with physical punishment but allow parents to use some degree of force against their children. However, the failure to completely remove the legitimised use of force against children means that children still do not enjoy the same level of protection from assault as adults under the law. Furthermore, the Parental Control provision has created ambiguities in the law that never existed in the past.

Chapter one outlines competing rights arguments. This chapter is designed to give a theoretical and jurisprudential foundation for the conclusion that children have the same right not to be hit as adults.

Chapter two explores the history of New Zealand's domestic discipline legislation, and the consequences of ratifying the United Nations Convention on the Rights of the Child. This chapter also briefly highlights the reasons behind public resistance to the repeal of s59.

Chapter three is an assessment of the new Parental Control provision. The problems with the provision are highlighted, and its impact on children's rights is explored.

Chapter four contains a case analysis to compare the new Parental Control provision with its predecessor. In this chapter, real and hypothetic cases are put through three tests: The old s59, the new s59, and the complete repeal of s59.