child abuse

Can you lawfully use physical force to correct your children?

As a parent, you might have a difficult situation mending the ways of your children without using physical force.  Sometimes, you might feel the need to ‘reasonably chastise’ your children when they exhibit unacceptable behaviour. While traditionally the law has acknowledged that it is acceptable for a parent to use physical force on their children, the modern approach has denounced it.

In 2002, the government of New South Wales amended the Crimes Act 1900 (NSW) (‘the Act’) to include section 61AA. The introduction of this section brought clarity as to what is and what is not acceptable conduct to lawfully correct your children. The section sets out the circumstances in which the defence of ‘lawful correction’ may exist in a situation that might otherwise lead to a charge of assault against the parent.

Why was section 61AA of the Act introduced?

The three main reasons for the introduction of section 61AA were as follows:

  1. Ensure that children are protected from unreasonable punishment, without limiting the ability of parents to discipline their children in the appropriate manner.
  2. Ensure that sensible parents have a defence, but that child abusers do not.
  3. Codify the Government’s belief that excessive force is never reasonable, irrespective of whether the person administering the force uses an implement.

What is section 61AA of the Act?

Section 61AA reads as follows:

(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 misbehaviour 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.

 

How and when is section 61AA applied?

When you as a parent, use force against your children to correct them, a charge of assault may be brought against you. In such circumstances, you might be able to rely on the defence of ‘lawful correction’ to fight the charge. To successfully rely on this defence you would have to prove that:

  1. The force was applied for the purpose of the punishment of the child.
  2. You were the parent of the child or were acting for a parent.
  3. The force applied was reasonable.
  4. The force applied was not on any part of the head, neck or in any way that was likely to cause harm to the child in the long term.

The Act defines the term child, parent and person acting of for a parent as follows:

‘Child’ means a person under 18 years of age.

‘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.

“person acting for a parent” of a child means a person

(a) who–

(i) 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 or a person to whom the parent has entrusted the care and management of the child, and

(ii) is authorised by a parent of the child to use physical force to punish the child, or

(b) 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.

 

When is the use of force on children considered reasonable?

The reasonableness of the use of force is determined on a case to case basis. The following factors are considered to make such determination:

  1. The child’s age, health, maturity and other characteristics
  2. The nature of the alleged misbehaviour of the child
  3. If the force was applied to the neck or head of the child
  4. If the force applied was likely to cause harm to the child in the long run
  5. Any other relevant circumstances

What happens when you successfully claim the defence of lawful correction?

The defence of lawful correction is a complete defence to a charge of assault. This means that if it is successfully proven in the Court it leads to a verdict of ‘not guilty’

 

The above information is intended as general information and is not intended to be relied on as legal advice

If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

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