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Parenting, and raising children is one of life’s greatest joys and perhaps the single most important responsibility an adult will ever have. Parenting is also not an easy task and can, for a variety of reasons, be one of the most challenging and difficult tasks one undertakes every day. It is often said that there is no parenting rule book, as each child, circumstance and parent is different. Every child misbehaves from time to time and there are various forms of punishment used by parents, including physical chastisement. This begs the question, what is lawful correction and what degree of physical force is acceptable? This question can often be highly controversial amongst parents as what may be perceived by one parent as being an acceptable form of punishment, may not be viewed as an acceptable form of punishment by another. Further, in what circumstances does the use of physical force to discipline a child extend beyond chastisement or punishment and become criminal?
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What does the law say about the use of physical force to discipline a child?
What does the law say about the use of physical force to discipline a child?
Section 61AA of the Crimes Act 1900 (NSW) sets out the statutory defence of lawful correction. The defence of lawful correction is set out below.
- In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if—
- the physical force was applied by the parent of the child or by a person acting for a parent of the child, and
- the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.
How is a child defined?
It is important to note that a child is defined as being under the age of 18 years, and therefore the defence of lawful correction can only be raised where the child being punished is under the age of 18 years.
Who is authorised to use physical punishment on a child?
The law states a parent of a child means a person having all the duties, powers, responsibilities and authority in respect of the child which, by law, parents have in relation to their children.
A person acting for a parent of a child means a person who:
- is a step-parent of the child;
- a de facto partner of a parent of the child;
- a relative (by blood or marriage) of a parent of the child; and
- is a person to whom the parent has entrusted the care and management of the child.
In each of the above, it is important to ascertain whether the person is authorised by a parent of the child to use physical force to punish the child.
- In the case of a child who is an Aboriginal or Torres Strait Islander, the person is recognised by the Aboriginal or Torres Strait Islander community to which the child belongs as being an appropriate person to exercise special responsibilities in relation to the child.
What physical force is considered by the law to be reasonable to discipline a child?
The law provides some boundaries as to what level of physical force is considered reasonable when disciplining a child. Section 61AA(1)(b) of the Act is that the use of physical force must be reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances. Section 61AA(2) of the Crimes Act 1900 (NSW) sets out what physical force is not considered reasonable when disciplining a child. The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances is not reasonable if the force is applied:
- to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period.
Importantly, the law does not limit the circumstances in which the application of physical force to discipline a child is not considered reasonable. For instance, the law remains silent on the use of any implements, which were often used many years ago such as smacking a child with a belt, instead focusing on whether the physical force applied to discipline a child was done in such a way as to be likely to cause harm to a child that lasts for more than a short period. For example, physical force which causes a child visible or other significant injuries will not likely be considered reasonable.
Was the act of physical force used to discipline a child?
Courts, when determining a defence of lawful correction, have the challenging task of carefully examining a variety of circumstances. A court will need to carefully examine the reasonableness of the physical force used to discipline a child having regard to the age, health, maturity or other characteristics of the child as well as the nature of the alleged misbehaviour and other circumstances. A court will also look closely at the overall circumstances to determine whether the physical force applied to the child was in fact done to discipline the child.
In R v WM [2020] NSWDC 714, the court held that kicking a 6 year old child to the leg was not considered reasonable punishment having regard to the age and state of maturity of the child and that there were many other disciplinary options available to discipline the child without having to resort to physical force. Instead, the court determined that the act of kicking the child was done as a result of the parent lashing out in anger, rather than applying any form of reasonable discipline.
The court also considered that there was no evidence that the act of kicking the child was accompanied by any form of education or explanation of the child’s behaviour, which even if the use of physical punishment or force was called for, would be a requirement for physical parental control to be found reasonable.
Practical Implications
Domestic Violence and other assault matters are serious offences. When considering any prospective defence of lawful correction, it is important that the circumstances and evidence of each case be carefully examined by an experienced criminal defence lawyer. It is therefore important that you consult with an experienced criminal defence lawyer as soon as possible after you have been charged with an offence.
The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you, or someone you know has been charged with a criminal offence and requires legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law matters further.
