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LAWFUL CORRECTION

On almost a daily basis, parents and guardians find themselves disciplining their children because of misbehaviour. The forms of punishment used can vary from removing the iPad, banning them from the television, putting them in the “naughty corner”, or physical discipline. It is the physical forms of punishment that parents exert on their children that can result in a criminal charge and heavy penalties. A criminal charge would only result if the parent or guardian had applied physical force to the child outside the boundaries of what the law permits.

 

How far can a parent or guardian take physical discipline of their child?

As a matter of common sense, the amount of physical discipline that can be applied to a child is considered reasonable when measured against the aged, health, maturity or other characteristics of the child, the nature of their misbehaviour and other circumstances. For example, a smack on the hand of a child reaching to touch a hot stove stop would be regarded as reasonable to prevent worse harm to the child. The harm that is caused by the smack on the hand would only cause pain for a short period of time. Smacking or hitting the child in the head or any part of the neck is disproportionate and considered criminal, and unless the force applied is assessed as negligible or trivial, the parent hitting the child could be charged with a criminal offence such as common assault. This is because the head and neck are sensitive parts of the body.

 

Section 61AA of the Crimes Act 1900 (NSW) legislates the defence of lawful correction. Subsection (1) provides that:

 

“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 -

(a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and

(b) 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.”

 

Section 61AA(2) of the Crimes Act 1900 provides:

“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--

(a) to any part of the head or neck of the child, or

(b) 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.”

 

It should be noted that the above does not limited the circumstances in which the application of physical force is not reasonable.

 

It is for the defence to prove, to the balance of probabilities, that the parent’s physical discipline was reasonable and proportionate in the circumstances.

 

Who can rely on this defence?

The defence is only available to a limited group of people. Only parents of the child or a person acting for a parent of the child can rely on this defence. An adult who punishes a nuisance child in public cannot rely on the defence and would be committing a criminal offence if they exercise physical discipline on a child.

 

If you have been, or know of someone who has been, charged with an offence relating to physical discipline of a child, it is important to seek professional legal advice to consider whether you have the defence of lawful correction available to you. Should you wish to discuss your options, please contact KF Lawyers for a free consultation.

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