EDITORIAL
The prominence of the event in the public domain has receded somewhat with discussion of the budgetary proposals delivered by the Honourable Minister of Finance on Tuesday of last week now assuming pride of place in the public discourse. Not that it has totally disappeared from the public consciousness; the ongoing criminal trial of the perpetrators of that alarming incident will ensure that it remains “news” for a while yet.
We refer of course to the vicious assault on a female pupil from a well-known school that was recorded on a mobile phone, placed on social media and that quickly went viral to the consternation of a disbelieving public. The law will take its course; of this we have no doubt. However, what we found most intriguing about the aftermath of the entire affair was the suggestion by the Honourable Attorney General, Mr. Adriel Brathwaite, that he is contemplating the introduction of legislation to hold parents liable for the criminal misdeeds of their children.
This suggestion is not novel in our jurisdiction and, to some extent, already exists in practice. Certainly, so long as a normal relationship of parent and child subsists, any monetary fine for an offence committed by the child will ultimately be borne by the parent, and the provision in section 64B of the Education Act, Cap 41 empowers the magistrate, in accordance with existing legislation, to order that any compensation awarded for damage to property at school should be paid by the parent.
It appears, however, that the AG’s proposal goes even beyond this and would have the parent(s) himself, herself or themselves held vicariously liable for the wrongful acts of the child. There are some statutes in other jurisdictions that achieve this end although most of these appear to be premised on the assumption that the parents were in some way at fault for the infant’s wrongdoing. In an article in the Notre Dame Journal of Law, Ethics & Public Policy, Gilbert Geis and Arnold Binder, professor emeritus and professor respectively in the Programme in Social Ecology at the University of California, Irvine, write that punishment in the US of parents and guardians for the criminal and tortious acts of their children and wards have taken three major forms. These are the so-called contributing-to-delinquency statutes where the parents are actively involved in the commission of the child’s misconduct, parental liability laws that appear to hold the parents strictly liable for the child’s wrong and those statutes that criminalise the wrongful acts or omissions of the parents themselves that conduce to the misdeeds of the child.
The matter is still subject to both popular and parliamentary debate, and the AG has not identified clearly whether there will be a strict liability regime or whether liability will inure only in a case where the parents were negligent or otherwise culpable.
Given the apparent mischief to be cured, “bad” parenting that may lead ineluctably to delinquency, it appears to us that the most prudent form of statute would be one that penalises the parents where it is established they have acted negligently in enabling the offence. According to accepted principle, this will require that the parent ought reasonably to have foreseen, as any diligent parent would have, that their act or omission was more than likely to have led to the commission of the impugned act.
That it would impose too onerous a duty on a parent to be aware of every misdeed of a teenage child would appear to be beyond argument.