The Need For Change

Pool Fencing Enforcement — 

  Perspective Lost

Situation

The Pool Fencing Act is a well-intentioned effort to protect children from accidental drowning.  A reasonable interpretation accepts that home pools are an ‘attractive nuisance’ which might reasonably be expected to be isolated from accidental access by children. Most home pool owners do accept this principle, though many would note that public ponds, fountains, culverts and other watercourses are not similarly protected.

The original territorial ‘Model’ Pool Fencing Bylaw was not mandatory and was adopted by only some councils.  The bylaw was intended to impede or prevent access by pre-school children, particularly those under two years old, onto properties with swimming pools.  Subsequent bylaws, and eventually the national Pool Fencing Act, incorporated progressively broader and more restrictive concepts including the ideas that “it is totally impossible for parents to supervise their children every minute of the day”, that private swimming pools represent a significant hazard that “children have a right to protection” from, and that “the value of aesthetically pleasing gardens cannot be placed above the value of human lives”.*   Each thought is acceptable on its own, but when such beliefs were strung together and let loose among a posse of enforcement officers who, with no particular qualifications, were asked to make judgements that would make an experienced judge scratch his head, a monster was created.  Over time the movement matured, and with the help of certain politicians and publicly funded special interest groups (such as Water Safe Auckland) a minor industry was born which continues to this day to make considerable waves among local pool owners.

One or two well-publicised child drownings, one of which in Auckland in 1997 resulted in a lawsuit against council, added fuel to the movement. Momentum grew through bureaucratic ardour, special-interest missionary zeal, and freedom from any real oversight. But the possibility of council liability seems to be the root driver which continues to haunt some councils.  The campaign soon developed a life of its own.  

Politically, pool owners are a relatively small group.  Steps which seem to protect children make for good public relations.  Efforts to soften onerous and abusive aspects of enforcement are easy to portray as acts against child welfare.  Even officials who understand the illogical and arbitrary aspects have been slow to speak out.  It is easy to portray pool fencing as a problem of the ‘well-off’.  Appeals to reason can be recast as privilege in need of restraint.  There has been a tendency to exaggerate the statistics on child drownings or to present them in an alarming manner, for instance referring to ‘50% of child drownings’ instead of the more informative ‘1 out of the two child drownings in 2009…’

Typically, parents with small children take preventive steps to ‘childproof’ their homes until the children outgrow the at-risk stage.  Boundary fences, contained play areas, stairway gates, toxic substance security, electrical outlet inserts, and, yes, even pool fencing might be employed.  But when visiting other people’s homes those parents would not assume, let alone insist, that the same safety measures be in place.  They might in fact expect to be extra vigilant instead.  Unfortunately much pool fencing ‘theory’ as practiced by pool enforcement staff doesn’t follow this logic.

[* Local Bills Committee report (1983) preceding the Fencing of Swimming Pools Bill (1986)]

There seems the assumption, at least in some districts, that pool security demands are the same everywhere, whether children are normally or indeed ever expected to be present. The at-risk toddler, whether actually present or not, is further assumed to be simultaneously athletic, adventuresome, cunning, and unsupervised.  This discussion paper argues that an adequate level of child protection was reached long ago on most existing properties and that current efforts to further reduce ‘theoretical’ accidental access to pools (via ‘what if’ scenarios) are unreasonable, impractical, and an unfair imposition on pool owners, especially those who have no children resident and who have already taken reasonable steps to keep unsupervised children from accidentally entering their properties. 

It is noted that there is no legislation in place to protect children from wandering away from their own property into the roadway, or to protect them from being run over in the family driveway, or from running in front of the Mr Whippy truck, or indeed from drowning in the bath.  It might be simpler and much less costly to simply legislate that any child under the age of six must be permanently and continuously tethered to an adult at any time during the day that the child is not actually asleep.  This measure would, in one stroke, eliminate any number of threats to children everywhere.

There is very little acknowledgement of the positive aspects of home pools or the contribution they make to the New Zealand lifestyle.  Helping children develop water competence, promoting health, and providing a focus for family activities are obvious virtues. But for many people pools also provide aesthetic and psychological benefits that are trampled by the “pleasing gardens cannot be placed above human lives” rhetoric.  Such statements are vapid in the extreme and provide absolutely no defensible basis for legislation or enforcement.  One of the pleasures of a pool in many settings is its serenity and the enjoyment that comes from simply looking at it.  Whacking a great galvanised ring fence around it quickly puts paid to that aspect.  Purported increases in public safety have never been adequately supported by empirical evidence or statistics.

A cynic might suspect a political dimension.  The framers of the law were possibly comfortable to see themselves cast in the role of protectors of children.  It has a good ring.  Once passed, other politicians might prefer to avoid changing the law to avoid appearing to be catering to the well off  “who can afford it” (as Bob Harvey famously alluded in 2004*).  New Zealand’s delicately balanced MMP Parliament doesn’t naturally lend itself to courageous stands on issues of less than near-universal importance.  The Pool Fencing Act has obvious serious deficiencies but doesn’t seem (yet at least) to be high on the legislative priority list.

That leaves the enforcement agencies, which in fact is where much of the trouble surfaces. If the original legislation was problematic (as noted by the courts), then poor judgement from enforcement bodies only made it worse.  That is precisely what has happened in some jurisdictions.  The Act was originally intentionally vague because (1.) one-size-fits-all obviously won’t work particularly on existing pools and (2.) rigorous definition was difficult if not impossible.  So the lawmakers left room for judgement to be applied in individual cases.  That does seem to have worked in some jurisdictions — it is still possible to see real estate photos from various parts of the country showing beautiful pools unspoiled by unsightly tight fencing. A wonderful advertisement for the New Zealand climate and lifestyle and for enlightened enforcement.

[* Bob Harvey – Paul Henry interview Radio Pacific 16 April 2004 : “We are going to have these guys on.  Yeah, these people don’t want fences really, they want their nice houses they can probably knock off for a couple of million…”]

But once pool enforcement personnel become sanctimonious and of the opinion they are on a righteous mission, pool owners can be treated in a very proscriptive, almost punitive, way.  This is most seriously antagonistic when ‘guidelines’ are applied rigidly to existing pools and at it’s most odious when previous compliance is revoked by later reinterpretation of the rules.  Pool owners are justifiably outraged and aggrieved at such treatment.  Pool fencing contractors, for their part, have seen it all before and recognise the ridiculousness of many of the rulings, meanwhile shaking their heads publicly while privately laughing enroute to the bank.  It is no accident that Water Safe Auckland (remember, receiving ratepayer funds) throws morning tea for pool contractors at a “meeting” every couple of months.

Compliance cancellation or withdrawal on the basis of reinterpretation of the law, as currently practiced in Auckland, is unquestionably totally unfair to property owners through the imposition of new cost over and above the initial safety investment — not to mention the diminished amenity value of both pool and property as a whole.  There appears to be considerable personal judgment at work on the part of enforcement staff.  Pool owners comparing notes recognise the variation between individual inspectors and authorities. When particular enforcement officials and their managers operate with rigid disregard for individual circumstance, often with only a vague sense of tangible benefits to be gained, they are justifiably met with incredulity, anger and resistance.

If the law as written is unreasonable or too expensive, new pools at least have the option of foregoing construction or altering design.  When inflexibly applied to existing pools, the owners are trapped unfairly by the details of their property.

This simply isn’t reasonable and needs to be stopped.

Conclusion

Pools, once compliant, should not be made non-compliant except through failure of some aspect of the original compliance criteria.

This injustice needs to be fixed.