In the absence of court orders to the contrary, each of the parents of a child under the age of 18 years is a guardian of the child, and the parents have joint responsibility for the child [Family Law Act 1975 (Cth) ss 61B and 61C].
Parents (and guardians) have the right to:
- determine the child's upbringing and education
- to discipline the child (including reasonable physical punishment)
- consent to the child's adoption
- take legal proceedings on their behalf.
Parents (and guardians) have the duty:
- to maintain the child, a primary duty imposed equally on both parents [Family Law Act 1975 (Cth) ss 66B and 66C and Child Support (Assessment) Act 1989 (Cth) ss 3 and 4], see CHILD SUPPORT
- to send the child to school once he or she reaches 6 years of age, and until he or she reaches 16 years of age (until 17 if they have not completed a qualifications) (unless exempted), [Education Act 1972 (SA) ss 5 and 76]
- to obtain medical attention for a child who is ill.
Generally, the law does not intervene between a parent and a child unless the parent abuses, neglects, fails to maintain or cannot control the child.
In more serious cases, a parent could face criminal charges relating to criminal neglect in circumstances where a child dies or suffers harm as a result of a specific act, omission or course of conduct. This applies where the parent owes a duty of care to the child, is aware or ought to be aware that harm would be caused to the child by the act, and failed to take reasonable steps to prevent the harm from happening [Criminal Law Consolidation Act 1935 (SA) ss 13B, 14]. A parent can also be charged with a criminal offence for failing to provide necessary food, clothing or accommodation to a child without lawful excuse [s 14A].
Any disputes about the children (for example, where parents separate and then contest where their children will live and when they will spend time with each parent) these issues will be decided according to what the court considers is in the child's best interests [Family Law Act 1975 (Cth) ss 60B]. For more information, see FAMILY RELATIONSHIPS, Arrangements for children.
Under the common law, parents and other adults who exercise parental control have the right to administer moderate and reasonable physical punishment to children in their care (although it is not clear if adults who are merely in temporary control of a child, such as baby sitters, are included) [see, for example, Police v G, DM  SASC 39]. However, excessive force may be regarded as assault, which is both a criminal offence and a civil wrong, giving the child the right to compensation for pain and any medical or other expenses incurred as a result.
The relationship between an adult and the child (for example, parent and child or teacher and child) is only one factor in deciding whether punishment is moderate and reasonable. Much depends on the circumstances of the case and the prevailing community standards, although relevant factors are:
- the age of the child. The child must be old enough to benefit from correction and the punishment must be reasonable for a child of that age. For example, it has been held by a court that a parent is not lawfully entitled to administer to a girl of 19 months any physical punishment except of the very lightest description - a slight slap at most;
- the size, health and, perhaps, the sex of the child;
- the seriousness of the child's offence;
- the instrument of correction. Canes have been held lawful in the past, but in the present day, caning or any use of an instrument may be held unlawful;
- where the blow is administered. Blows to the face or other vulnerable parts of the body are very probably unlawful.
- the force and number of the blows; and
- the severity of the blows. Injuries requiring medical attention will normally suggest illegal behaviour.
It has also been held by the English Court of Appeal that, even where punishment is inflicted by a parent, the standard to be applied is that of the community generally and not that of the particular parents or family, or of any religious, ethnic or other group. For punishment by a teacher, see Education.
For more detailed information about physical punishment and related issues, see AIFS' Corporal Punishment- Key Issues Resource Sheet.
There is no law that says how old a child must be to be able to babysit. Parents are expected to make their own decisions and in doing so the only guidance the law provides is that they make make reasonable decisions about their children’s safety.
What is reasonable will depend on:
- each individual family's circumstances;
- the age and maturity of the child who will be babysitting;
- any other factors that might be relevant (e.g. whether the child or children being cared for have special needs, such as requiring monitoring of medication).
What the law does say about parent’s responsibilities towards children
- Parents are responsible for the care, welfare and development of their children [Family Law Act 1975 (Cth)]
- it is an offence for a parent to leave their children in a dangerous situation and/or leave a child or children unfed, without clothing or accommodation [ see Criminal Law Consolidation Act 1935 (SA) ss 14 and 30]
- the Police or the Department for Child Protection have the power to remove children or young people if necessary to protect them from suffering serious harm and there is no reasonably workable alternative [see Children and Young People (Safety) Act 2017 (SA) s 41]
Where a child under 18 years of age is left to babysit and something goes wrong who is liable?
Where a child under the age of 18 is left to babysit and the issue of negligence or liability arises it is likely that the parent or parents will be held liable for the carer in addition to the children being cared for. Where a child under the age of 18 is left in charge of younger children they will not be judged by the same standards as an adult.
There are a number of questions parents need to ask themselves before deciding whether to allow older children to babysit younger children and excellent resources are located on the Parenting SA website including a guide called Home Alone.
The courts, whether the Youth Court or the Family Law Courts, will decide matters concerning where children and young people live and in whose care, guided by the best interests of the child or young person and principally the need to protect them from harm. Each case depends on its facts - especially on the attitudes of the parents, the maturity of the child, and such factors as satisfactory accommodation, education or employment and a lifestyle that the authorities regard as reasonable.
If a child or young person leaves home and their parent or guardian does not hear from them or know their whereabouts, they should file a missing persons report with police.
If a parent or guardian is concerned about a child or young person leaving home to live elsewhere, causing them to be at risk of harm, those concerns should be reported to the Department for Child Protection. See Notification.
A child or young person who has no fixed address or has been absent from school without satisfactory explanation is considered 'at risk' for the purposes of the Children and Young People (Safety) Act 2017 (SA) [see s 18(1)(e) and (f)] and the Department for Child Protection has the power to investigate such reports, as well as any other reports suggesting a child or young person is at risk of harm. See Children and young people at risk.
The Department may intervene or take other measures to protect the child or young person. See Intervention Orders and Child Protection Restraining Orders and Notices.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.