Whilst most people have their own personal views in regards to smacking of children, it is a recent Supreme Court decision that has shed light on the legality of this controversial topic.
Many debates have taken place and it is often seen in the media that smacking is unlawful which has left people confused and unsure. The Queensland Criminal Code 1899 provides that “it is lawful for a parent …. to use by way of correction, discipline, management or control, towards a child or pupil, under the person’s care such force as is reasonable under the circumstances.”
However what is “reasonable under the circumstances”? A recent Supreme Court decision in South Australia has had to make this determination.
A father in South Australia was charged with one count of aggravated assault of his 12 year old son. The father smacked the child three times on his thigh and the child reported not feeling any serious pain in his leg though the redness lasted for two days but he did not bruise. In summary, leading up to the incident the child had thrown a tantrum because he was refused a dessert from a bakery and then continued to be difficult including slamming his door and rolling his eyes. The father was found guilty in the Magistrates Court of criminal assault and he appealed the decision to the Supreme Court.
Case law has established that the age, physique and mentality of the child are to be considered and the nature of any injury or pain produced. So whilst every case is different these factors are used to determine reasonableness. The “suffering of some temporary pain and discomfort by the child will not transform a parent attempting to correct a child into a person committing a criminal offence.”
The most recent case went so far as to say that “some level of pain is permissible… the mere existence of red marks caused by the punishment does not prove unreasonable correction.”
A common thread in previous cases is that discipline in law applies only to children capable of understanding correction. The forceful correction of an infant therefore would not be viewed as reasonable in this context.
“Matters such as frustration and anger [of the parent] may certainly be taken into account when assessing whether the correction was reasonable”, but is it not a determinative factor. The force used must be “for the purpose of discipline, management or control of the child” and not because of loss of control or anger on behalf of the parent.
The appellant Judge said that the father of the child was a “very patient parent and takes great care in education by reasoning and example rather than parental correction, but on one occasion, under great provocation from the badly behaving child, he does not exercise his usual of forbearance and smacks the child in a moderate way in order to correct him.” Justice David Peek said that the smack was not “unreasonable” for the purpose of correcting misbehaviour and the finding of guilt was quashed.
Whilst this case assists in determining what is “reasonable in the circumstances” it is not always black and white and is open to interpretation.
The content of this article is for general information purposes only.
