Released by: Rob Pope, Deputy Commissioner, Operations

20 December 2007

Background

1. On 22 June 2007, the Crimes (Substituted Section 59) Amendment Act (the Amendment) came into force, amending section 59 of the Crimes Act 1961. The purpose of the Amendment was "to make better provision for children to live in a state free from violence by abolishing the use of parental force for the purpose of correction".¹

2. There are no criminal offences under the Amendment.

3. As outlined in the Justice and Electoral Select Committee Report, "the Amendment removes the defence of using “reasonable force” against a child for the purpose of correction and clarifies that reasonable force may be used for other purposes such as protecting a child from harm, providing normal daily care, and preventing the child doing harm to others".²

4. Following the Amendment, New Zealand Police (Police) agreed to undertake a three month review (23 June to 28 September 2007) of the impact of the Amendment on Police activity.

5. The purpose of the review was to enable Police to proactively respond to any issues, and to provide specific information on:

   • Volumes of calls to Police about child assaults involving “smacking” and “minor acts of physical discipline” versus other child assaults.

   • Nature of child assaults involving "smacking" and "minor acts of physical discipline" and whether they are "minor and inconsequential" or more serious.

   • Practice issues, including processes for and volumes of notification to the Ministry of Social Development (MSD) (Child, Youth and Family) or other social services.

   • Usability of the Police Commissioner‘s Circular: 2007/03 - Crimes (substituted section 59) Amendment Act 2007 (Commissioner's Circular).

   • Data collection issues for monitoring of the effects of the Amendment following the first two years of implementation, as required by section 7 (1) of the Amendment. MSD is leading this work with the support of Police and other government agencies.³

Methodology

6. The Police Family Violence Governance Group and MSD agreed in June 2007, that the following steps would be undertaken to inform the three month review process.

   • Review of Police statistics to identify the volume of "smacking", "minor acts of physical discipline" and other assaults.⁴

   • Review of prosecution files for any cases identified as being prosecuted.

   • Consultation with Police Child Abuse Teams and Family Violence Co-ordinators to determine the impact of activity on Teams and Co-ordinator.

   • Consultation with Police Districts and Areas to seek anecdotal feedback on practice issues and the usability of the Commissioner's Circular.

Discussion

Volume of "smacking", "minor acts of physical discipline" and other assault events

7. The first three months following enactment of the Amendment have identified a small increase in Police activity in attending and/or investigating child assaults matching the original search criteria.⁵

8. Police attended a total of 111 child assault events (matching the original search criteria),⁶ 15 of which involved "smacking" and "minor acts of physical discipline".

9. This represents a minor increase in the figures for the previous three month period prior to the enactment (17 March to 22 June 2007), where Police attended 95 child assault events (matching the original search criteria), 13 of which involved "smacking" and "minor acts of physical discipline". This information is provided in Table 1.

10. As with the three month period prior to the Amendment, there were no prosecutions for "smacking" and "minor acts of physical discipline" against children during the review period.⁷

Table 1
Events	Volume before Amendment	Volume after Amendment	Increase in volume of events
"Smacking"	3	3	0
"Minor acts of physical discipline"	10	12	2
Other child assault	82	96	14
Total	95	111	16




11. Whilst the figures show a minor increase in Police activity in terms of attending and/or investigating child assaults, it should be noted however that increases between the two periods can also be driven by:

• Seasonal variation, or

• Random variation from year to year, or

• Changes in reporting driven by other factors (such as the effect of media coverage of child murders, children self-reporting because of awareness of the Amendment, social marketing campaigns such as the Campaign for Action on Family Violence, or changes in Police recording practice).⁸

Nature of "smacking" and "minor acts of physical discipline" events following changes to the law

12. As previously advised, the Amendment explicitly outlaws the use of parental force for the purposes of correction or punishment. Parliament has however, expressly affirmed that for minor cases of child assault, Police have discretion not to prosecute where the offence is considered to be so "inconsequential" that there is no public interest in a prosecution. This affirms in law the standard Police practice under the existing prosecuting guidelines.

13. Although there is no statutory definition of “inconsequential” the Commissioner's Circular states that, “the use of objects/weapons to smack a child, strikes around the head area or kicking would not be inconsequential assaults. While all mitigating and aggravating circumstances would need to be considered, such assaults will generally require a prosecution in the public interest”.⁹

14. All of the 15 child assault events involving "smacking" or "minor acts of physical discipline" were determined to be "inconsequential" by either the attending and/or investigating Police Officer.

Practice issues: case management - notifications, referrals and resolution outcomes

Notifications to Child, Youth and Family and referrals to other agencies

15. Force used on children that is not permissible under the Amendment, is covered by the Police Family Violence Policy.¹⁰ The Application of the Family Violence Policy (1996/2), as outlined in the Commissioner's Circular, states that, “it is considered good practice that assault investigations involving children be referred to Child Abuse Investigators, and investigated in conjunction with Child, Youth and Family”.¹¹

16. The Commissioner's Circular also states that “in cases where the force used is found to be minor, trivial or inconsequential, it will be appropriate to record the event on a POL 400 and forward the file to the Family Violence Co-ordinator”.¹²

17. Of the 15 child assault events involving "smacking" and "minor acts of physical discipline",¹³ two were referred to Police Family Violence Co-ordinators, four were referred to Child, Youth and Family, three were referred to inter-agency Case Management meetings (Family Violence Inter-Agency Response System or FVIARS) for “advice only”, one was referred to Family Works for family support, and seven events did not have a notification status specified on the electronic Police file.¹⁴ This information is provided in Table 3.

Table 2
Events	Referral to Police Family Violence Coordinator	Referral to Child Youth & Family	Referral to inter-agency case management meetings	Referral to other agency	Referral not specified
"Smacking"	0	1	0	0	0
"Minor act of physical discipline"	2	3	3	1	7

                Note: one child assault event was referred to more than one agency.

18. Case management processes of referring or notifying government agencies of child assault events must be cognisant of the intent and purpose of the Amendment. During the second reading of the Crimes (substituted section 59) Amendment Bill, it was made clear that "Parliament never intended that all parents who ever lightly or occasionally hit their children should be subject automatically to investigation and police prosecution".¹⁵

19. Police are looking into the referral practice for child assault events of this nature, and will continue to monitor this area over the next six to 12 months. This is to ensure that Police are able to proactively manage any practice issues that may arise.

Resolution outcomes

20. The majority of the assault events involving "smacking" or "minor acts of physical discipline" resulted in no further Police action or a warning of some sort. Three events resulted in no further Police action, seven events resulted in a warning from Police against the use of "physical force to discipline" their children, and two events resulted in a warning and a specific reminder about the Amendment.

21. In three child assault events, the resolution outcome is not specified on the electronic Police file. We assume that these events resulted in no further Police action or a warning. This is because the electronic Police file indicates that the three events were either filed or inactivated, as opposed to assigned to Police prosecutions or a Child Abuse Team for investigation and/or prosecution. Police are looking into this matter, and will continue to monitor this over the next six to 12 months. This information is provided in Table 4.

Table 3
Events		No further action		Warning		Warning and reminder about Amendment		Resolution not specified
"Smacking"		1		1		1		0
"Minor act of physical discipline"		2		6		1		3

Commissioner's Circular

22. All 12 Police Districts were surveyed to seek anecdotal feedback on practice issues and the usability of the Commissioner's Circular. The overwhelming feedback from the field is that the Commissioner's Circular represents a “commonsense approach” and has been helpful for Police attending and/or investigating child abuse events.

23. Whilst all 12 Police Districts commented that no changes should be made to the Commissioner's Circular, Police are looking into the practices of electronic recording of child assault events and referrals of child assault events to relevant agencies. Police will also continue to monitor these areas over the next six to 12 months to ensure that Police are able to proactively respond to any practice issues that may arise.

Data issues for monitoring effects of the Amendment

24. Police are confident that reviewing Police statistics followed up with specific electronic file searches is the best available method for gathering data for the MSD-led work on monitoring the effects of the Amendment following the first two years of implementation. It should be noted that this is an extremely time and resource intensive process. It involves an extensive manual search of individual files to identify "smacking" and "minor acts of physical discipline" events.

25. Police are planning to carry out another statistics and specific electronic file search on a six monthly basis. This will serve as an appropriate management tool for the two-year monitor and enable Police to proactively respond to any issues that may arise.

26. Police and MSD have agreed that Police will use the same methodology in the two year review that was used in this three month review.

Rob Pope
Deputy Commissioner, Operations
New Zealand Police

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