Lawful Correction of a Child


Historically, the law has always acknowledged that it is acceptable for a parent to punish a child using force. Up until 2002, we relied upon judges to decide what is acceptable behaviour when punishing a child and what actions are not acceptable and therefore fall into the category of unlawful assault. In 2002, laws were put in place in New South Wales which provide clarity as to what is and is not acceptable for the purpose of lawful correction of a child. The law now sets out the circumstances in which the defence of lawful correction of a child can be raised as a defence to a charge of assault in New South Wales.

Legislation

Section 61AA of the New South Wales Crimes Act sets out when a person who has been charged with an assault upon a child can raise a defence of lawful correction. To successfully rely on the defence an accused would have to prove:

  • The force used on the child was for the punishment of the child;
  • The force was applied by a parent or a person acting in the role of a parent;
  • The force was reasonable having regard to the age, health and maturity of the child, the nature of the child’s misbehaviour and other circumstances.

The force will not be reasonable if:

  • It is applied to the neck or head of the child unless it was trivial or negligible.
  • The force is likely to cause harm to a child that lasts for more than a short period.

Who may rely on the defence of lawful correction of a child?

The defence of lawful correction of a child may be relied on by a parent of the child or a person acting in loco parentis. This means that a person acting in the place of a parent, someone who temporarily has the care of the child, may also lawfully discipline the child with reasonable force – for example, a smack.

A parent is defined in the Crimes Act as 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 in the role of a parent of the child is defined to mean one of the following persons:

  • 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
  • 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.

Onus of proof

Where a person is charged with assaulting a child and advances the defence of lawful correction of a child, the accused bears the onus of proving that their actions fell within the ambit of what is acceptable behaviour under Section 61AA of the NSW Crimes Act.

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