Parental Criminal Responsibility for the Misconduct of Their Children: A Consideration

  • Charnelle van der Bijl University of South Africa (UNISA)
Keywords: parental responsibility, delinquent acts of children, law of delict, criminal law, comparative approach with the United States

Abstract

This contribution examines parental criminal responsibility for the delinquent acts of their children.  As South African law has been swayed by legal philosophy of Anglo-American jurisprudence, a comparative analysis is undertaken with the United States of America, where this issue has been addressed legislatively in both civil tort law and criminal law. The reasoning behind the implementation of specific legislation in the United States is that the common law principles are rooted on the principles of individualisation, which does not specifically cater for parental liability.  Parental responsibility laws have been challenged constitutionally over the years in the United States. Critics are of the view that such laws interfere with the rights of parents to raise their children and are a form of cruel punishment. Additional criticism raised is that parental responsibility laws impose strict liability on parents. Furthermore, some misgivings have been shed that many parents face challenges of being single parents or poverty, which will be exacerbated with the imposition of fines or imprisonment for the misconduct of their children. Despite these concerns and criticism, it will be shown that these laws have withstood the challenges over many decades, in the United States, in both the fields of the law of tort and criminal law. The common law of tort provides for the liability of parents for the conduct of their child. However, such conduct must be specifically attributable to a parent’s action or inaction. The purpose behind tort parental responsibility legislation focuses not only on providing monetary compensation by parents where their children are unable to do so, but also aims to encourage parents to provide better supervision of their children.  At the opposite end of the spectrum, the focus of statutory criminalisation tends to remain on criminal liability of parents for failing to protect others from their child, due to a failure in supervision and to prevent juvenile delinquency.  The South African law of delict is briefly contiguously considered in the context of parental responsibility laws. The concept of parental criminal responsibility laws under South African law is then considered and proffered as a useful mechanism to regulate misconduct of children currently falling outside the aegis of the criminal law.

Author Biography

Charnelle van der Bijl, University of South Africa (UNISA)

Professor of Criminal and International Criminal Law

Department of Criminal and Procedural Law

References

Literature

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Case law

South Africa

Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC)

De Beer v Sergeant 1976 1 SA 246 (T)

Masiya v Director of Public Prosecutions 2007 2 SACR 435 (CC)

Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA)

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United States of America

Adams v Board of Sedgwick County Com’rs 214 P 3d 1173 (Kan 2009)

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VB v Flemington-Raritan Regional Board of Education No HNT-L-95-13 (NJ Sup Ct Mar 12 2014)

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Legislation

South Africa

Child Justice Act 75 of 2008

Constitution of the Republic of South Africa, 1996

United States of America

Alabama Code

California Penal Code

Massachusetts General Laws Annotated

Maryland Code

Model Juvenile Court Act of 1899

Model Penal Code of 1962 (updated 1985)

New Jersey Statutes Annotated

New York Penal Law

North Carolina General Assembly General Statute

Oregon Revised Statutes

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The Federal Juvenile Delinquency Act of 1974 (amended 1984)

The Fourteenth Amendment to the United States Constitution (1868)

United States Code Annotated

Welfare and Institutions Code

Internet Sources

Bourdeau J VII Bourdeau §94 Parent and Child in “Liability of Parent for Conduct of Child; Offences of Child against Parents” 59 Am Jur 2d http://www.westlaw.com accessed 15 August 2016

Kletter FL “Juvenile Courts and Delinquent and Dependent Children” 47 Am Jur 2d Juvenile Courts, Etc. § 25 http://westlaw.com 2014 accessed 16 August 2016

“Parental Failure to Control Child” 45 Amjur POF 2d 549 §2 Parent’s Duty to Control Child – Standard of Care (Cumulative Supplement) http://westlaw.com accessed 16 August 2016

Parental Failure to Control Child” 45 Amjur POF 2d 549 §3 Parent’s Duty to Control Child – Foreseeability of Risk of Harm; Knowledge of Child’s Harmful Propensity (Cumulative Supplement) http://westlaw.com accessed 16 August 2016
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Published
2018-04-06
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