Can I smack my child ?
What is 'lawful correction'?
'Lawful correction' is a statutory defence to assault and other criminal charges relating to applying physical force to children. It is found under s 61AA of the Crimes Act 1900 (NSW). It states that physical force applied to a child can be lawful when it was applied "for the purposes of punishment" and the application of force was "reasonable".
The defence was codified in state legislation in 2001, but it has been used as a lawful excuse in matters for a long time. The principle that a parent could physically discipline their child (within reason) has been recognised in the courts for hundreds of years.
When the NSW government brought this defence into the legislation, the Attorney-General made it clear they were trying to balance two key considerations. Of paramount importance was protecting children from "unreasonable punishment" and ensuring that the law did not protect child abusers. However, they also made it clear it was important to protect the right of "sensible parents" to "discipline their children in an appropriate manner" and ensure that children were not "immune from ordinary parental discipline".
The defence in s 61AA attempts to strike this balance by requiring the court to consider the particular characteristics of the child and the specific circumstances of the situation. Additionally, it is made clear that causing anything more than temporary, transient harm is unacceptable.
Who can use this defence?
This defence is firstly available to a parent of a child.
It is also available to "a person acting for a parent of the child". This means the defence can include step-parents, de facto partners looking after their partner's children, relatives of a parent (like an aunt/uncle or grandparents) or other persons who have been entrusted with the care of a child (like a teacher or babysitter). However, for this defence to apply, any of the above classes of people must have been "authorised" by the actual parent to use physical force to discipline their child.
Additionally, the child to whom force is applied must be under the age of 18. A parent, or person acting for a parent, cannot discipline an adult child with physical force and be lawfully excused for it under this defence.
What is 'reasonable'?
The age, health, maturity or other characteristics of the child:
Section 61AA requires a court to consider the particulars of each child and each situation that comes before them in order to determine what is a reasonable application of force.
The age and maturity of a child go hand in hand. The older a child gets the more their physical, intellectual and emotional maturity grows – although this might be affected by a mental or physical health condition. There are long established principles that anything more than the lightest physical contact is not allowable for babies and toddlers – at times any physical discipline should not be accepted for this age group as a child must be capable of understanding the correction they are receiving.
As a child grows older and matures, the force that the courts might accept as reasonable may also increase. This is because the same force that would be too much for a young child might have a minimal impact on an older, stronger child. Additionally, they are more capable of understanding the purpose and lessons of parental discipline.
The court must also consider any physical, mental, or cognitive issues that may impact on ordinary assumptions about a child's level of maturity and ability to cope with physical discipline.
The nature of the alleged misbehaviour:
The court is also required to contemplate the behaviour that led to the physical discipline. The discipline must be applied in a moderate and proportionate way, which means it must not be used in situations where the misbehaviour is slight or trivial or where there are much more appropriate pathways to correcting and educating the child.
In a recent case a court found it wasn't reasonable to kick a child of 6 in the leg after he stuck up for his mother during a parental argument.
The application of physical force:
The legislation explicitly states that any force applied to a child's head or neck will be found to be unreasonable.
It also asserts applying force in any way that is likely to cause "harm to the child that lasts more than a short period" will not be found reasonable. This means that generally anything that causes bruising, scratches, muscle strain, or bleeding will be considered excessive and unreasonable and the defence will not apply.
In most cases the court allows this defence for striking or "smacking" that causes only temporary 'redness' or physical contact that causes no marking or lasting pain.
The purpose of the physical contact:
The court has also made it very clear that discipline, correction and/or education of the child must be the primary purpose for applying physical force to a child. Physical contact that occurs because someone is lashing out in anger or frustration is not considered to be lawful correction. There must be a purpose directly related to disciplining a child's bad behaviour.
Onus of proof
The burden of proof for lawful correction is on the defendant, which means a person must prove 'on the balance' that this defence applies. To be lawfully excused for physically disciplining a child, a defendant must show that it is more likely than not that they were acting to 'correct' their child and that the physical force they applied was reasonable in all the circumstances.
The prosecution is not required to disprove this in order to make out the relevant charge.
