Almost from the beginning of time the law has acknowledged that it is lawful for a parent to punish a child using force. Up until 2002, we relied upon judges to decide what or what may not be acceptable behavior for an adult when punishing a child.
In 2002, laws were put in place which provides more clarification as to what may or may not be acceptable discipline. The laws define the circumstances in which the defence of lawful correction of children can be raised as a defence in criminal charge.
The NSW Crimes Act sets out when a person who has been charged with a criminal offence upon a child can raise a defence of lawful correction. To rely on the defence an accused would have to prove:
(a The force used on the child was for punishment of the child;
(b The force was applied by the parent or a person acting for a parent of the child;
(c The force was reasonable having regard to the physical and mental characteristics of the child, what the child did or other circumstances.
The force will not be reasonable if:
(a It is applied to the neck or head of the child unless it was trivial or negligible.
(b The force is likely to cause harm to a child that last for more than a short period.
Lawful correction- Smacking A Child – The Law
Section 61AA (1) & (2) Crimes Act 1900 outlines when the defence may be available.
Section 61AA (1) states:
(1 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 misbehavior or other circumstances.
(2) 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.
Lawful Correction- Smacking A Child – Who may rely on the defence?
The parent of the child or a person acting for a parent of the child.
A parent is defined in the Crimes Act to mean 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 the child is defined to mean one of the following persons:
(i) A step-parent of the child, a de facto spouse of a parent of the child, a relative (by blood or marriage) of a parent of the child or a person to whom the parent has entrusted the care and management of the child, and
(ii) A person authorised by a parent of the child to use physical force to punish the child, or who, in the case of a child who is an Aboriginal or Torres Strait Islander (within the meaning of the Children and Young Persons (Care and Protection Act 1998), 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.
Lawful Correction – Smacking A Child – Onus of proof
The accused must prove the defence of lawful correction on the balance of probabilities.