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Corporal punishment and family law: mum’s one smack sees her children removed

By June 29, 2022February 23rd, 2024No Comments

The subject of smacking your kids has become controversial in recent years with more and more calls for corporal punishment to be made illegal in Australia, as it now is in many countries around the world. Currently, it is not illegal for a parent or carer to smack their child in Australia. However, as a Queensland mother recently learnt, a parent can still be charged with assault and also risk having their children removed from their home as a consequence. Although the circumstances around the children’s removal from the mother are unclear, what has been reported is that the mother was convicted of assault after smacking her son on the bottom with a spoon, and that she also lost custody of both her children as a result of the smack. Let’s take a quick look at the subject of corporal punishment for children—what is actually permitted?

“Reasonable chastisement” or “lawful correction of a minor”

In Australia, common law and legislation in most states allows a parent who is facing assault charges to put forward a defence of ‘lawful chastisement’.  Some parts of Australia have specific guidelines about what is lawful chastisement. For example, NSW has clear guidelines on areas of a child’s body where you cannot apply force.

Courts will consider whether the use of physical force on children was reasonable in the circumstances after taking into account a number of factors. These are:

  • the child’s age, maturity, health and other characteristics;
  • the nature of the child’s transgression and whether the use of physical force was reasonable in the circumstances and not likely to cause serious harm; and
  • any other relevant circumstances.

Specific laws on corporal punishment vary around the country (you can view them here).

When a parent crosses the line

If the line is crossed between reasonable and unreasonable force, or reasonable and unreasonable circumstances, then assault charges can follow, and there can be consequences for the parenting arrangements of the children.

What happened in this matter?

In the recent case, the 46 year old single mother reacted physically after her son (who has special needs including ADHD and autism) used her credit card to rack up $600 in video game purchases. After confiscating the boy’s gaming console, she grabbed her son and hit him on the bottom with a spoon that she took from the kitchen. The boy suffered bruising on his body.

After child safety authorities were told of the incident, the woman admitted hitting the child to police. She was convicted of assault and given a nine-month probation order, with her conviction not being recorded.

The woman’s defence lawyer says both children were removed from her care and she is now only allowed to see her children twice a week under supervision. The defence lawyer said, “She will be fighting to have her children returned to her care as soon as she can, with the appropriate support networks in place.”

The magistrate accepted that the mother’s actions were out of character while her lawyer said the assault was a result of “a brain snap with a difficult child” and described her as “extremely remorseful”. He also added that the non-custodial and non-financial penalty was appropriate as it didn’t see her “spending money on a fine and taking food from [her] children’s mouths, effectively”.

Note that the media has not reported full details of the case. But it may be that the mother’s corporal punishment was seen as unreasonable due to the fact that it left visible bruising and because of the child’s characteristics, having special needs. It’s quite possible the child’s autism may have been a factor, perhaps making the physical punishment more traumatic for him. And while his misbehaviour was serious, perhaps the child’s special needs also factored into his inability to understand that what he was doing was wrong, or to connect the smack with his behaviour—making corporal punishment “unreasonable” since it could have no success in “teaching him a lesson”.

Why is smacking falling out of favour?

Studies have repeatedly shown that smacking leads to anti-social behaviours, aggression and mental health issues in adulthood. Not only that, but it isn’t shown to be associated with immediate or long-term compliance—which is the whole point of using smacking as discipline. Rather what it seems to teach kids is that violence is an acceptable means of changing another person’s behaviour, or that it’s a legitimate outlet for adult frustration and aggression. Further studies have also shown that adults smacked in childhood were more likely to later be physically aggressive to partners.

Ultimately, many countries around the world are aligning their laws with the principle of the United Nations Convention on the Rights of the Child, which make clear that children have the right to be protected from harm and from being hurt, which includes physical punishment.  As the magistrate in this recent case said, “society has moved on” from physically punishing children.

Source: 7News

If you would like legal advice on a parenting matter or any other family law issue, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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