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Parental rights and duties

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 and Children's Services Act 2019 (SA) ss 68-69]
  • 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.

Physical punishment

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:

  • 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.

Legal age to babysit

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.

Leaving home

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.

Early childhood services and immunisation requirements

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:

  • the provision of primary education provided at or in connection with a primary school; OR
  • a service comprising a person engaged by a parent or guardian of a child to babysit the child in the child's home; OR
  • a babysitting, playgroup or childminding service that is organised informally by the parents or guardians of the children concerned; OR
  • a service provided for a child by a family member of the child or friend of the family of the child personally under an informal arrangement where no offer to provide that service was advertised; OR
  • a service principally conducted to provide tuition to 1 child or a number of children who ordinarily reside together; OR
  • a service principally conducted to provide instruction in a particular activity (such as sport, dance and music); OR
  • a service where a parent or guardian of each child remains on site and is available to care for their child if required; OR
  • a service comprising out of school care; OR
  • care provided to a child by a person in accordance with a parenting order under the Family Law Act 1975 of the Commonwealth or the Family Court Act 1997 of the Commonwealth; OR
  • care provided to a child under the Children and Young People (Safety) Act 2017; OR
  • any other service, or service of a kind, prescribed by the regulations;

Enrolment

A person who provides an early childhood service must not enrol a child for the provision of the service unless:

  • immunisation records relating to the child have been provided to the person in accordance with section 96B(1) of the Act ; AND
  • the immunisation records indicate that the child meets the immunisation requirements

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 immunisation records relating to the child have been provided to the person in accordance with section 96B(1); AND
  • the immunisation records indicate that the child meets the immunisation requirements.

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]:

  • A general practitioner, a paediatrician, a public health physician, an infectious diseases physician or a clinical immunologist has certified in writing that:
    • the immunisation of the child would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook; or
    • the child does not require immunisation because the child has developed a natural immunity;
  • Where a vaccine is temporarily unavailable;
  • Where a child was vaccinated overseas.

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].

    Parental rights and duties  :  Last Revised: Fri Sep 7th 2018
    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.