Fighting Your Kid’s Battles Gone Too Far

Man shoves 12 year old kid in response to bullying.

Fighting Your Kid’s Battles Gone Too Far

VIGILANTE FATHER TAKES MATTER INTO HIS OWN HANDS

An incident on Sunday 31st March 2019 where a man allegedly attacked a 12-year-old boy at a skate park is currently being investigated by police. This occurred after a group of 12-year-old boys threatened and abused another 12-year-old boy. The abused child ran off and returned with a grown man believed to be his father, and the group began to verbally assault the boy again. The man proceeded to shove one of the boys down a skate bowl, then throw a scooter towards him. This is seen in video footage. It is not clear how close the scooter got to the boy. This incident is problematic and raises many issues involving bullying, assault, and even corporal punishment.

POSSIBLE ASSAULT CHARGES APPLICABLE:

COMMON ASSAULT

Common assault, i.e. an assault which does not cause actual bodily harm, is covered by section 61 of the Crimes Act 1900 (NSW) (‘the Act’), carries a maximum penalty of two years imprisonment for those found guilty of carrying out such an act. The Prosecution must prove beyond reasonable doubt that the accused assaulted the victim; and that they intentionally or recklessly caused another person to apprehend immediate and unlawful violence. For further discussion on common assault and to see what your options are at law if ever facing such a charge, check out our info page. It is very likely that the police will bring a charge/(s) against the man who allegedly committed the assault on a 12-year-old boy.

ASSAULT OCCASIONING ACTUAL BODILY HARM

If the child actually suffered physical harm from this act, however, then the police will be able to bring charges for assault occasioning actual bodily harm. This is dealt with by section 59 of the Act. It states whosoever assaults any person, and thereby occasions actual bodily harm, will be liable to imprisonment for five years. Subsection 2 states if this occurs in the company of another person or persons, this increases to imprisonment for seven years. The Prosecution must prove beyond reasonable doubt that the accused applied force, hit or touched another; did so intentionally or recklessly; without consent or lawful excuse; and that action caused bodily harm to the other person.

ANY DEFENCES APPLICABLE?

DEFENCE OF LAWFUL CORRECTION

Although the child who the man assaulted was not his own, it is prudent to bring in discussion here about the law’s position on corporal punishment, now known as lawful correction. The term corporal punishment is still used by the Australian Institute of Family Studies and is defined by that institution as “the use of physical force towards a child for the purpose of control and/or correction”. There is legal regulation for the degree of physical punishment that a parent can use on their child in Australia. Essentially, this form of punishment is not classified as child abuse if the actions taken are ‘reasonable’. This is an extremely grey area of law as there is no definition of ‘reasonable’ provided in the legislation and there appears to be no community consensus on the topic. What one person sees as reasonable could be viewed as completely unacceptable by others.

Morality and reasonableness are subjective concepts. The law addresses questions of morality quite well considering this. There is overwhelming consensus that there should be laws prohibiting murder, for example, that is clear. Reasonableness, on the other hand, is always judged by the trier of fact i.e. a judge or jury and cannot be pre-empted most of the time by legislation. One way of trying to cover such a grey area is to look at common ways of measuring reasonableness in terms of lawful correction. These could be the age and size of the child, the method of punishment, the child’s capacity for reasoning, and the harm caused to the child.

Now looking at what we do have in terms of legislation, in NSW there is an outline of what is ‘unreasonable’ corporal punishment. An Amendment to the Act to reflect the defence of lawful correction created section 61AA(2) which states:

‘The application of physical force … is not reasonable if the force is applied:

  • To any part of the head or neck of the child, or
  • 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.’

This section also outlines ways of measuring what is reasonable when using physical force such as the age and health of the child. The Act does also clarify that lawful correction is only to be applied by the parent of the child or by a person acting for a parent of the child. If one assaults someone else’s child, that is simply the case of an adult assaulting a child. There is no grey area there.

WHEN DOES SELF-DEFENCE ARISE?

If the child in question was bullying your child, an argument for self-defence, or defence of another cannot apply if the threat is not immediately present. You and your child must both be in the presence of the imminent threat for any reliance of self-defence to arise. Even if this is the case, the principle of self-defence is that the action taken by the person at risk must be proportionate to the threat, not excessive. Self-defence is covered by section 418 of the Act.

BULLYING

Bullying is clearly the biggest issue in this case for the broader picture. According to the NSW Department of Education, bullying is defined by three key features:

  1. It involves a misuse of power in a relationship;
  2. It is ongoing and repeated; and
  3. It involves behaviours that can cause harm (NSW Dept of Education).

Issues surrounding bullying have come to the forefront of Government and school campaigns in recent years. The public is far more informed now than in the past about the negative effects of bullying. It is no longer treated as a matter of needing to ‘toughen up’, ‘fight back’ or remain silent about it. Bullies are being called out on their unacceptable behaviour, particularly in cases where there has been persistent harassment from children across social media, leading to the eventual suicide of young people. The NSW Government has taken the initiative to publish factsheets on these issues. Notably, what to do if your child is being bullied, if your child is bullying others, and if your child has seen bullying take place. This is an important step on a long, continuous journey ahead to ensure the safety of everyone.

FINAL NOTE ON THIS CASE AND BULLYING

The problem with tackling bullying is that a lot of it occurs outside of the school setting, like at the skate park in this case, and we find ourselves unsure of how to address it. On some level, people may agree with or at least understand where this father was coming from when he assaulted the 12-year-old kid who bullied his child. On the other hand, however, violence should never be the answer and he does not set a good example for the kids around him. New, creative ways of combating bullying and harassment need to be trialled. One pathway is through education; we seem to be heading in this direction already but if the perception of young people were to change to make bullying seem uncool, there may be more accountability for those who seek to engage in such behaviour. The case of Fraser Anning has the potential to make slapping a child look negative, but the throwing of an egg to look positive. There lies some difficulty.

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