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

Abstract

This contribution examines the criminal responsibility that is imposed upon parents for the delinquent acts of their children. As South African law has been swayed by the legal philosophy of Anglo-American jurisprudence, a comparative analysis is undertaken with the United States of America, where this imposition has been addressed legislatively in both civil tort law and criminal law. The reasoning underlying the implementation of such 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. These parental responsibility laws have been challenged constitutionally over the years in the United States, as critics argue that such laws interfere with the rights of parents to raise their children and are also a form of cruel punishment. Additional criticism submitted is that parental responsibility laws impose strict liability on parents. Further misgivings have also been voiced that many parents face challenges such as those of being a single parent or of suffering poverty, both of which will be exacerbated if fines are imposed, or if such parents are imprisoned for their child's misconduct. It will be shown that in the United States these laws have managed to withstand such challenges over many decades in both the fields of the law of tort and that of criminal law. Although the common law of tort provides for the liability of parents for their child's misconduct, the child's conduct must be specifically attributable to the parent's action or inaction. 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 pursuade parents to better supervise their children. At the opposite end of the spectrum, the focus of statutory criminalisation tends to remain on the criminal liability of parents for failing to protect others from the actions of their children resulting from a failure in supervision, as well as a prevention of juvenile delinquency. The South African law of delict is briefly contiguously considered in the context of parental responsibility laws. The concept of South African parental criminal responsibility law is then considered. It is proffered as a useful mechanism to regulate the misconduct of children currently falling outside the ambit of the criminal law.

Keywords: Parental responsibility; delinquent acts of children; law of delict; criminal law; comparative approach with the United States.