Three laws parents in Queensland should know about (but probably don’t)

Article by Danielle Hansen, Criminal Lawyer

At what age can you leave your child unattended?

Kids across Queensland are well and truly back to school for the year.  In this article, we have outlined the laws surrounding the safety and protocol parents of children in Queensland should be aware of, particularly:

1. leaving your children unattended;
2. how kids are to travel in cars; and
3. disciplining your child (particularly smacking).

We suspect that most parents are unaware that to leave your child unattended and without supervision can be a criminal offence.

It is a controversial topic that has received a lot of attention in the media and amongst parents across Queensland.  There was outrage in 2017 when Queensland Police sent out notices to parents reminding them that children under the age of 12 cannot walk or ride to school alone.

Parents took to social media to express their frustration about the notice, many concerned that parents often work full time and simply don’t have the ability to do the school pick up/drop off.

We’ve answered some of the questions we know are on many parents’ minds around this topic.

What is The Law Around Leaving Your Child?

Section 364A of the Queensland Criminal Code outlines the legal obligation parents or carers have around supervising their children. It states:

• A person who, having the lawful care or charge of a child under 12 years, leaves the child for an unreasonable time without making reasonable provision for the supervision and care of the child during that time commits a misdemeanour. Maximum penalty—3 years imprisonment.

• Whether the time is unreasonable depends on all the relevant circumstances.

 

The police must prove the following things to successfully prosecute someone for this offence:

1. They must have the lawful care or charge of the child (for instance, a parent or carer);
2. The child must be under 12 years of age;
3. The child must be left for an “unreasonable time”; and
4. The person did not make reasonable provision for the supervision and care of the child during that time.

The law was inserted into the Criminal Code in 2008. Under previous laws, parents could only be charged with an offence if their unattended child was injured or suffered neglect.  The laws were brought out with the view that children’s safety is paramount.

Does this mean that I cannot allow my child walk or ride to school alone?

There is not a “one size fits all approach” to this question but yes, you could be charged if you allow your child to walk or ride to school alone.

If your child is under the age of 12, you cannot leave them alone, unsupervised or without care, for an “unreasonable time”.  As to how long an unreasonable amount of time is, an objective test is applied.  However, that does not make it any less ambiguous.

Our principal Bill Potts, recently spoke about the subject of leaving kids unattended in his position of 2019 President of the Queensland Law Society, noting:

“Put simply, a carer or parent of a child under 12 years cannot leave the child for an unreasonable time without ensuring they are supervised and cared for in a reasonable manner during that time. The maximum penalty for this misdemeanour is 3 years’ imprisonment.”

He confirmed:

 “Leaving a child unattended can include the trip to and from school — particularly with a child walking by themselves to school for an unreasonable distance, or if no before or after school care is provided for and the child is left at home until a parent comes home.  Whether the time is classed as unreasonable depends on the circumstances.”

Individual circumstances to be taken into account when considering if you are in breach of this law can include:

• the age, physical condition and intellectual capacity of the child;
• the distance the child is travelling;
• the suburb you live in (i.e. are they travelling in the inner city or in a quiet neighbourhood);
• whether the child has been taught that particular route before (for example, the child may have walked/ridden this route for two years with their parent before being able to do it alone); and
• what time they are being left alone (for example, if the child is leaving home at 8:00am to arrive and be under the care and supervision of the school shortly after compared to if they leave at 6:00am and will be unsupervised for a much greater period of time).

Queensland Police have issued notices to parents reminding them of their obligations to ensure that their children have adequate supervision when travelling to and from school.  The notices advise that police will take action against parents who (in their view) are not complying with the laws.

What if I leave my kids in the car or at home while I duck into the shops?  Can I be charged in those circumstances?

We know what you’re thinking – shopping is so much easier without kids in tow.  Again, there is not one answer that will fit every situation.  The temptation to leave your kids in the car or at home while you go and grab some milk can be irresistible. However, the short of it, is that you risk being charged with a criminal offence.

The test, again, is whether the child would be unsupervised for an “unreasonable” amount of time.  Some examples of situations where people have been convicted of an offence of leaving their child unattended include:

• A five-month-old child was left in the car with the doors closed and windows up for around 10 minutes;
• A nine year old child was left at home for the day while their mother went out shopping;
• A three year old child was left at a campground late at night while her mother travelled 2.5 km away to get something from a friend.

There is obviously a clear distinction between an 11 year old child being left unsupervised for a few minutes, and an infant or a toddler being left alone for a longer period of time either at home or in the car.

If you have been charged with this offence, it is important that you receive legal advice immediately.  There are many benefits to engaging a lawyer to act for you, even in the early stages of a police investigation. Our firm is highly experienced in these matters and can provide you with:

• Expert advice about your rights when speaking with the police;
• Comprehensive advice about the strength of the police’s case and your prospects of successfully fighting the charge;
• A representative who can attend court on your behalf (and save you from having to attend and speak for yourself on every court date);
• Years of experience in successfully negotiating with prosecution on our clients’ charges; and
• An experienced courtroom advocate who can effectively present your case and submit to the court relevant, persuasive information designed to minimise your penalty.

The Laws Regarding Cars And Kids

In this section, we address some of the most frequently asked questions of Queensland’s traffic rules surrounding where and how children are to be seated in the car.

What type of restraint do I need for my child?

Queensland road rules outline the various positions and restraints that must be used by passengers in a car that are under 16 years of age.  Failure to comply with these rules can result in a fine (currently just under $400) and three demerit points for the driver.

The type of child restraint you need to install for children will depend mainly on the child’s age, but you may need to consider the child’s size as well. For instance, the Queensland Government recommends that babies and children stay in a rear-facing restraint for as long as their size allows.

Babies up to 6 months old: Babies up to 6 months of age must be restrained in an approved rear-facing restraint that is properly fastened and adjusted.

Babies and children—6 months to 4 years: Babies and children from 6 months and up to 4 years must be seated in an approved child restraint that is properly adjusted and fastened. The child restraint may be rear-facing or forward-facing and must have a built-in harness.

Children—4 to 7 years: Children aged 4 years and up to 7 years must be seated in either:

1. an approved child restraint that is forward-facing with a built-in harness that is properly adjusted and fastened; or
2. an approved booster seat secured with either:
   1. an adult lap-sash seatbelt; or
   2. a fastened and adjusted H-Harness.

The Booster seat or cushion

A booster cushion is a booster seat without the back and side wings.  Booster cushions are legal to use providing they complied with the Australian standard AS/NZS 1754 at the time of manufacture (there should be a sticker showing approval and a date stamp for when it was manufactured). The Queensland Government recommends that you do not use a child booster cushion if it was made more than 10 years ago.

Children who are 7 years and over (but under 16 years) may sit in:

1. a standard seat with an adult seatbelt; or
2. an approved booster seat/cushion secured with an adult lap-sash seatbelt or an H-Harness; or
3. an approved child restraint that is forward-facing with a built-in harness that is properly adjusted and fastened.

Can my child sit in the front seat seats?

This is another road rule you should be aware of.  If a child is not in the correct seat, you (as the driver) can be fined. The offence of not complying with the rule also carries three demerit points. Whether your child can sit in the front seat depends on the type of car you have – i.e. whether you have only 1 row of seats (for example, a truck or Ute) or more than 1 row (most cars and vans in Queensland).

Cars with more than 1 row of seats

Queensland road rules state that a child under 4 years of age cannot sit in the front seat under any circumstances if your car has more than 1 row of seats.

Children between the ages of 4 and 7 years old can only sit in the front seat if all other seats are occupied by children less than 7 years of age.  They still must be restrained correctly, though (see above for rules about restraints).

If your child is over the age of 7, they can sit in the front seat, but again with the appropriate restraint if required.

Cars with only 1 row of seats

If your car only has a single row of seats, children of any age can sit in the front seat as long as they are properly restrained.  If the vehicle has a passenger airbag, a rear-facing child restraint shouldn’t be used in the front seat if the restraint is positioned close to the airbag.

Can I smoke in the car while my child is with me?

The laws around smoking (particularly where you can smoke) have changed dramatically in recent years. In line with the aim of keeping our children safe, the Queensland Government made it an offence for someone to smoke in the same car a child is in.

A person can be charged with an offence if:

1. the vehicle is on a road or road-related area; and
2. another person in the vehicle is under 16 years of age.

If you are caught smoking in a car when a child is in the car with you, you can be fined by police in excess of $260.

Disciplining Children – what you need to know

Long gone are the days where the wooden spoon or canes are acceptable forms of teaching your child a behaviour lesson.  Recently, we have acted for a number of parents who have been charged by police following them disciplining their child, sometimes in ways that would have not only been acceptable, but common practice 20 years ago.

What are the laws in Queensland around smacking or disciplining children?

A person in Queensland can be charged with assaulting another person if:

1. they strike, touch, or apply force of any kind to the other person;
2. the assault was without the person’s consent; and
3. The assault was not authorised, justified or excused by law.

The law set out in section 280 of the Queensland Criminal Code allows parents (or people in the place of a parent, including school teachers) to discipline a child in their care with force that is reasonable in the circumstances. Section 280 states:

It is lawful for a parent or a person in the place of a parent, or for a schoolteacher or master, to use, by way of correction, discipline, management or control, towards a child or pupil, under the person’s care such force as is reasonable under the circumstances.

There’s that word “reasonable” again.  What is reasonable can differ between each situation, and all of the circumstances must be considered. Some important factors include:

• The way the punishment was given (e.g. smack, punch etc. and which part of the body (e.g. arm, buttocks, head));
• The amount of times it was given (e.g. one smack vs 10 smacks);
• The age, sex and physical and mental condition of the child;
• The standards currently prevailing in the community;
• Previous treatment of the child by the parents and the history of the relationship between child and parents; and
• Whether the forced used was only by way of correction and not retribution.

Case Study on disciplining children

If a person crosses the line of reasonableness, they can face charges of assault or (if they have used an object such as a wooden spoon or a cane) assault occasioning bodily harm whilst armed with a weapon (which carries a maximum penalty of 14 years imprisonment).

We have acted for clients previously charged with assaulting their children in situations where the force used was not reasonable in the circumstances.

Being charged (and convicted) of an offence involving violence against your children can have a ripple effect into other areas of law including:

• family law proceedings;
• domestic violence proceedings;
• child safety proceedings;
• your ability to hold (or apply for) a Blue Card required for working with children;
• other employment-related cards, tickets or obligations to regulatory bodies.

Allegations of violence against your child can also see domestic violence proceedings being brought against you.  Domestic violence protection orders are generally in place for five years and can include strict conditions such as limitations on contact with the people named on the order.

Charges of assault, particularly against children, are dealt with seriously by the police and the courts.  It is important you obtain specialised advice so that you:

• know your rights before speaking with police;
• gain an understanding of the court process and your options;
• receive personalised advice in relation to the nature of the charges against you and your prospects in fighting the allegations;
• receive advice in relation to how to mitigate penalty, where you are pleading guilty; and
• have an experienced advocate for you in court and in all dealings with the prosecution.

About the author

Danielle Hanson is one of our senior criminal lawyers and holds a Bachelor of Laws and a Bachelor of Criminology and Criminal Justice from Griffith University.  Although she is based at our Southport office, Danielle regularly travels to Brisbane and regional areas across Queensland to represent her clients.

Danielle represents clients charged with a wide variety of criminal offences including violence, sexual offending, traffic matters, and white-collar crimes. She is committed to restorative justice and has successfully assisted many clients to resolve their charges via mediation.

For more information, Contact Danielle by calling  18004POTTS.

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