Unless a court orders otherwise, each parent has parental responsibility for their child until they turn 18 [Family Law Act 1975 (Cth) ss 61B and 61C].
Parents (and guardians) have the right to:
Parents (and guardians) have a duty to:
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 or omission, and fails to take reasonable steps to prevent the harm [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].
Disputes about the care of children following separation will be decided according to what the court considers is in the child's best interests [Family Law Act 1975 (Cth) s 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 [2016] 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:
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 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:
What the law does say about parent’s responsibilities towards children
Who is responsible if a child under 18 is babysitting and something goes wrong?
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 of the children being babysat 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 Federal Circuit and Family Court, 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 South Australian Public Health (Early Childhood Services and Immunisation) Amendment Act 2020 commenced on 7 August 2020.
The amending Act has inserted new provisions (Part 12A) to the South Australian Public Health Act 2011 (SA), to prohibit enrolment and providing early childhood services where immunisation requirements not met.
The parent or legal guardian must supply the early childhood service with the approved immunisation records for their child.
Definition of early childhood services
Childcare, family day care, pre-school, occasional care, kindergarten and early learning centre services are an early childhood service for the purposes of the Act.
Section 96A of the Act defines an early childhood service as a service for the education or care (or both) of a child under the age of 6 years, excluding the following services:
Enrolment
A person who provides an early childhood service must not enrol a child for the provision of the service unless:
Section 96B(1) of the South Australian Public Health Act 2011 (SA) states that he parent or guardian of a child that is enrolled, or attends at premises for the purposes of the provision of an early childhood service, must provide immunisation records relating to the child to the provider of the service in accordance with the requirements of the Chief Public Health Officer.
A child will meet the immunisation requirements, if the child meets the immunisation requirements within the meaning of the A New Tax System (Family Assistance) Act 1999 of the Commonwealth (subject to any prescribed modifications).
The maximum penalty is a $30 000 fine for a person who breaches the prohibition.
It is however a defence to a charge of an offence under this section relating to the enrolment of a child to prove that the defendant relied in good faith on immunisation records (or purported immunisation records) provided to the defendant in accordance with section 96B(1) indicating that the immunisation status of the child was up to date.
Providing early childhood services
A person must also not provide an early childhood service for a child unless:
The maximum penalty is a $30 000 fine for a person who is found to breach this prohibition.
It is a defence to a charge of an offence under this section relating to a child to prove that the defendant relied in good faith on immunisation records (or purported immunisation records) provided to the defendant in accordance with section 96B(1) indicating that the immunisation status of the child was up to date.
Exemptions
Section 96E of the South Australian Public Health Act 2011 (SA), provides the Chief Public Health Officer with discretionary powers to provide written exemptions to the above prohibitions, and can revoke or vary such exemptions.
It is an offence for a person to contravene, or fail to comply with a condition of an exemption, with a maximum penalty of $30 000.
Please visit the SA Health website here for further information on immunisation requirements and when an exemption may apply [link opens in a new window].
Child Care Subsidy – Centrelink
A New Tax System (Family Assistance) Act 1999 (Cth) provides that a person is not eligible to receive the Child Care Subsidy in relation to a child who does not meet the immunisation requirements [ss 6, 85BA]. A child can ‘meet the immunisation requirements’ through certain exemptions under this Act – both for the purposes of the Child Care Subsidy and the South Australian Public Health Act 2011 (SA). The exemptions include [s 6]:
An exemption due to medical contraindication is quite limited and is not subject to the broad discretion of the medical professional (see, for example, Huikeshoven v Secretary, Department of Education, Skills and Employment (No 2) [2022] FCA 1021].
In South Australia, children who do not ‘meet the immunisation requirements’ (as defined in A New Tax System (Family Assistance) Act 1999 (Cth)), are not eligible to attend early childhood services [see above]. However, some children who receive an exemption from the South Australian Chief Public Health Officer may be eligible to attend early childhood services (under South Australian law) but still remain ineligible to receive the Child Care Subsidy (under the Commonwealth law) [South Australian Public Health Act 2011 s 96E].