The law in relation to Smacking your child in NSW.
IS SMACKING YOUR CHILD AN OFFENCE?
While it is a controversial topic, there are many parents out there who prefer to give their kids a smack as a way to discipline them, rather then alternative measures. Whereas some parents find hitting a child, no matter how softly you do it, absolutely deplorable.
But is smacking your kids even legal?
The answer to the above question according to the current law is: it’s not illegal to smack your children in NSW. However, there are conditions.
It’s definitely a controversial topic but according to the law, it’s not illegal to smack your children in Australia. However, there are conditions. According to the Australian Institute of Family Studies:
“In some jurisdictions, a parent’s right to use corporal punishment is provided for in legislation, while others it is provided for by the common law. All Australian states and territories condone (in principle) the use of force by a parent, but way of correction, towards a child”
WHAT IS LAWFUL CORRECTION?
In NSW the law specifies that physical punishment by a parent “shouldn’t harm a child more than briefly” and limits the use of excessive physical force to punish children to only where there is a need for “lawful correction”. For a greater discussion on this issue please click here
THE DETAILS OF THE DEFENCE
Lawful correction is a valid defence. However it can only be raised in relation to a response to a child related charge. Moreover, the defence defines the circumstances in which correction of children can be raised.
The NSW Crimes Act sets out when a person who has been charged with a criminal offence upon a child, it is open for them to raise a defence of lawful correction. In particular Section 61AA of the Crimes Act 1900 (NSW) sets the defence.
(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.
THE LIMITATIONS OF THE DEFENCE OF LAWFUL CORRECTION
Suffice to say the force used on the child must be for punishment of the child.
The force must also be as follows:
- Applied by the parent or a person acting for a parent of the child; and
- Be reasonable having regard to the physical and mental characteristics of the child, what the child did or 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; and
- The force is likely to cause harm to a child that last for more than a short period.
The accused must prove the defence of lawful correction on the balance of probabilities. The defence of Lawful correction does not prevent other defences from being raised.
For a list of all other defences please visit our dedicated defences pages.
IF YOU ARE CHARGED WITH SMACKING A CHILD, WHAT ARE YOUR OPTIONS?
National Criminal Lawyers™ only employ the best Criminal Lawyers Sydney has to offer. Moreover, we have been successful in defending a number of charges where the prosecution could not establish each of the elements of the alleged offence.
National Criminal Lawyers™ , your best criminal lawyers Sydney, offer the following options for those who have been charged with a criminal offence;
- We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
- We can on your instructions facilitate a plea of Not Guilty and go to hearing/trial and attempt to persuade the Court that prosecution has not proven its case beyond reasonable doubt;
- We can on your instructions facilitate a plea of guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
- Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction or have you sentenced to the least restrictive penalty available.
WHY NATIONAL CRIMINAL LAWYERS™ ?
There are many reasons to choose National Criminal Lawyers™ ;
We understand that one of the worst consequences of a criminal charge is the damage to your reputation. As one of the top law firms Sydney has on offer we ALWAYS seek to restore your reputation;
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We always guide you through the preparation work required and assist in helping you provide everything needed to go to court.
We always guide you through obtaining the best of character references and letters of apology. We also use the best psychologists, medical and other experts;
We guarantee that a Senior Criminal Defence Lawyer from Sydney will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible and will not be subjected to a Junior or recently graduated Lawyer;
We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available; and
We know that Criminal Law is a matter of Human Rights. As such we take pride and passion in representing our clients. You can always rest assured that National Criminal Lawyers are the best defenders of your rights;