In South Australia, the intentional application of physical force on a child, without their consent, is an assault [Criminal Law Consolidation Act 1935 (SA) s 20]. It is also an assault to threaten to apply force. A parent or person in loco parentis (in the place of a parent) who hits, smacks, slaps, spanks, or otherwise applies force to their child or the child of another, or threatens to do so, commits a criminal offence.

The offence will be aggravated and attract a higher penalty if the victim is the child of the person who has applied force, or if the child is younger than 12, or if a weapon is used [s 5AA].

As well as being a criminal offence, assaulting a child may also give rise to civil liability and the child may be entitled to compensation for pain and medical expenses.

Reasonable chastisement

A defence may be available if the parent or guardian can establish that force was applied to their child for the purpose of correcting behaviour or punishing wrongdoing.

The common law permits parents and persons in loco parentis to administer moderate and reasonable physical punishment to children in their care [see for example Police v G, DM [2016] SASC 39].

To rely on this defence, force must have been applied for the purpose of correcting behaviour and not out of rage or malice or for personal gratification [Police v G, DM [2016] SASC 39 at [40] – [46]]. Evidence of the previous relationship between the parent and the child may be relevant to determine the true motive. Whether the physical punishment was accompanied by some form of education or explanation as to appropriate behaviour may also help demonstrate that it was intended to be corrective [R v WM [2020] NSWDC 714 at [30]].

Whether a particular application of force by a parent is moderate and reasonable will always depend on the circumstances of the case. There are a range of factors that can help determine whether a particular disciplinary act was reasonable in the circumstances.

The age of the child

The child must be old enough to understand the purpose of the corrective act, and the physical punishment must be reasonable for a child of that age. It is unlikely that physical punishment of a very young child or infant will be considered reasonable. Similarly, a child who is close to 18 may be considered too old for physical correction [Police v G, DM [2016] SASC 39 at [51] – [54]].

The size and health of the child

The reasonableness of a physical punishment may also depend on the size, health and cognitive ability of the child. A harder hit to a small, light-framed or frail child, or a child in poor health or with disability, may be more likely to injure and may be more difficult to justify. A child with learning or cognitive disability may not appreciate the purpose for the punishment.

The nature of the physical punishment

Whether a corrective physical punishment is moderate and reasonable will depend on its nature and severity. The type of physical acts involved, the level of force used, the pain inflicted, the number of blows administered, the parts of the body subjected to the punishment, the use of an instrument or weapon, and the resulting injury to the child are all relevant considerations. Case law suggests that more severe or long-lasting punishment may not only be found to be unreasonable, but may also be harder to justify as genuinely for a corrective purpose [Police v G, DM [2016] SASC 39 at [41]].

Community standards

The reasonableness of an act will always be considered in light of current community standards and not the standards or beliefs of a particular person or community, religious or ethnic group.

Tolerance for violence against particular members of the community such as women and children has shifted significantly over the past few decades in Australia. There is also a growing body of research that suggests that physical punishment is not an effective method of correcting behaviour and can in fact cause children long-term harm.

There are many resources available for those seeking guidance to correct their children’s behaviour. The Commissioner for Children and Young People has released a factsheet about smacking and physical punishment that includes alternatives to physical punishment for a range of behaviours.

Further information and support services can be found through the Adults Supporting Kids website.

For punishment by a teacher, see School Discipline.