Corporal punishment is the use of physical force on a child for the purpose of control and/or correction with the intention of causing some degree of pain or discomfort. Hitting, smacking, spanking, belting, kicking, shaking, biting and forcing a child to stay in an uncomfortable position are all forms of corporal punishment.
Corporal punishment in the home is a difficult and divisive subject. There have traditionally been two main discourses:
Should children have the same rights as adults? And;
How far should parliament intervene in methods of parenting that have traditionally been regarded as a “private” domain?
Recently a Sydney mother was fined $1,200.00 and placed on an 18 month good behaviour bond following a domestic violence conviction for assaulting her 5 year old daughter out the front of a restaurant.
The mother slapped her daughter in the stomach and back over a 30 minute period after her daughter would not eat her lunch.
The degree of physical punishment that a parent or carer can use with a child is subject to legal regulation in Australia. In most states and territories, corporal punishment by a parent or carer is lawful provided that it is carried out for the purpose of correction, control or discipline, and that it is “reasonable” having regard to:
The child’s age;
The method of punishment;
The child’s capacity for reasoning (i.e. can the child comprehend discipline); and
The harm caused to the child.
In New South Wales the only clear legislative guidance on “reasonable” is the statement that any corporal punishment will be “unreasonable” if the force is applied to any part of the head or neck of a child. In relation to punishment applied to other parts of a child’s body it will be “unreasonable” if the punishment is applied in such a way that would likely cause harm to a child that lasts for more than a short period.
This begs the question: “what is a short period?”
Some guidance as to the answer can be found in a couple of decisions of the Local Court NSW. In one such decision the parents of a child allegedly detained her for 22 months for the purposes of discipline, which conduct was found to have been such as to cause harm for greater than a “short period”. In another such decision a parent bit a child on the arm for the purpose of teaching the child not to bite causing a mark to be left on the child’s arm. The harm, was found to have lasted for greater than a short period. In a third such decision, a parent struck their 11 year old child with a belt, leaving welts that remained visible to Police. Again, the harm, was found to have lasted for greater than a short period. Legislative guidance provides for harm to be unreasonable, bruising, marking or other injury must last longer than 24 hours.
These decisions reinforce the right of parents, and those acting as parents, to use reasonable force to discipline their children. To be considered at law “a person acting for a parent” you must be:
A de facto partner of a parent,
A relative (by blood or marriage) or person that a parent has entrusted the care and management of the child and is authorised by a parent to use physical force to punish the child,
or if the child is Aboriginal or Torres Strait Islander,
A person who is recognised by the Aboriginal or Torres Strait Islander community to which the child belongs as an appropriate person to exercise special responsibilities in relation to the child.
What can you do if you are charged with assault of your child or a child in your care?
If you take the view you did nothing more than inflict reasonable discipline, you may be able to raise the defence of lawful correction. When this defence is raised the Court will consider;
Your relationship with the child, it must be established that you are a parent or acting in the capacity of a parent of the child; and
The force must be considered reasonable having regard to the age, health, maturity or other characteristics of the child and the alleged nature of the misbehaviour.
Once the defence of lawful correction has been raised, the Prosecution must prove beyond a reasonable doubt that the assault went beyond the limits of lawful correction.