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References
Family Law Reform Act 1969, sec. 1. For general accounts of the law as it affects children in England and Wales, see A. Bainham, Children: The Modern Law (3rd edn. 2005) and J. Fionda (ed.), Legal Concepts of Childhood (2001).
Even within the same statute: see, e.g., Children and Young Persons Act 1969, sec. 70.
Children and Young Persons Act 1969, sec. 70; Education Act 1996, sec. 548(7).
Children and Young Persons Act 1933, sec. 107; Children and Young Persons Act 1969, sec. 70.
Children and Young Persons Act 1933, sec. 30(1). School is compulsory until the age of 16 (or the end of the school year after reaching 16 years of age): Education Act 1996, sec. 8.
See, e.g., Children and Young Persons Act 1933, sec. 107.
Children and Young Persons Act 1933, sec. 5 (read with Confiscation of Alcohol (Young Persons) Act 1997, sec. 1).
Licensing Act 1964, sec. 169C and 169E.
Sexual Offences Act 1956, sec. 14(2) (girls) and 15(2) (boys).
Children and Young Persons Act 1933, sec. 7.
Road Traffic Act 1988, sec. 101.
After the abrogation of the Infants Relief Act 1874, sec. 1 by the Minors’ Contracts Act 1987, whether a contract is enforceable against a child has again become a matter of common law. In broad terms, children are bound by contracts for “necessaries” and by beneficial contracts of employment. For consideration of the common law principles, see H. Beale (ed.), Chitty on Contracts (28th edn. 1999), vol. 1, § 8-002 et seq., and M. Furmston (ed.), The Law of Contract (2nd edn. 2003), § 4.2 et seq.
Children and Young Persons Act 1933, sec. 50 (as amended).
Crime and Disorder Act 1998, sec. 34.
Children and Young Persons Act 1933, sec. 45; Criminal Justice Act 1991, sec. 68. Exceptionally, a child or young person may stand trial in an adult court, e.g., when charged with homicide.
Powers of Criminal Courts (Sentencing) Act 2000, sec. 89–91. A conviction for murder, however, always entails a life sentence — even if the offender was under 18 at the time of the offence: sec. 90.
Powers of Criminal Courts (Sentencing) Act 2000, sec. 100–107.
See, e.g., Powers of Criminal Courts (Sentencing) Act 2000, sec. 16 (referral to youth offender panels), sec. 63 (supervision orders), and sec. 73 (reparation orders). Cf. sec. 46 (community service orders only available where offender is aged 16 or over).
See, e.g., Crime and Disorder Act 1998, sec. 65 (police reprimands and warnings); Children and Young Persons Act 1969, sec. 23, as amended (children and young persons to be remanded to local authority accommodation, not police custody). Note in particular the role of the “appropriate adult” at various stages of the procedure: see, e.g., Code of Practice on the Detention, Treatment and Questioning of Persons by Police Officers, §§ 11.15–17 (issued under Police and Criminal Evidence Act 1984, sec. 66).
Youth Justice Board, Youth Justice: Annual Statistics 2002/03, 5. These may be compared with the total numbers of recorded crimes in these categories: 991,800 offences of violence against the person, 1,109,370 offences of criminal damage, 53,200 offences of arson, and 413 offences of causing death by dangerous driving (no figures available for non-fatal injuries). See J. Simmons/ T. Dodd (eds.), Crime in England and Wales 2002/03, Home Office Statistical Bulletin (2003).
Road Casualties Great Britain: 2002 — Annual Report, Department of Transport website (www.dft.gov.uk), table 37a.
D. Clarke/ P. Ward/ W. Truman, In-depth accident causation study of young drivers (2002) (prepared for Road Safety Division, Department for Transport).
D. Clarke/ P. Ward/ W. Truman (supra fn. 24), 1.
D. Clarke/ P. Ward/ W. Truman (supra fn. 24).
M. Elliott/ C. Baughan, Adolescent road user behaviour: A survey of 11–16 year olds (2003) (prepared for Road Safety Division, Department for Transport).
D. Clarke/ P. Ward/ W. Truman (supra fn. 24), 1.
J. Fionda, Legal Concepts of Childhood: An Introduction in: J. Fionda (supra fn. 1), 4.
See, especially, Home Office, Respect and Responsibility — Taking a Stand Against Anti-Social Behaviour (2003), Cm 5778. The quotation about youths hanging around street corners comes from the Home Secretary’s Ministerial Foreword (p. 3).
Crime and Disorder Act 1998, sec. 8 (as amended); Anti-Social Behaviour Act 2003, sec. 20.
Anti-Social Behaviour Act 2003, sec. 19 and 25.
Anti-Social Behaviour Act 2003, sec. 19(8) and 25(7).
Powers of Criminal Courts Act 1973, sec. 35 (now superseded).
Power of Criminal Courts (Sentencing) Act 2000, sec. 130(1). Sec. 130(6) further limits the availability of compensation orders in respect of “injury, loss or damage... which was due to an accident arising out of the presence of a motor vehicle on a road”, e.g. where covered by the offender’s insurance.
Sec. 130(3).
Sec. 130(4): “of such amount as the court considers appropriate”.
Sec. 130(11).
Sec. 131.
Sec. 134.
Sec. 137(1). Where the convicted person is 16 or 17, the court has the power (but not a duty) to make such an order: sec. 137(3). I use “parent” here and in what follows as convenient shorthand for the statutory expression “parent or guardian”.
Sec. 138.
R (on the Application of M) v Inner London Crown Court [2003] England & Wales High Court (EWHC) 301; [2004] 1 Butterworths Family Court Reports (FCR) 178, at [78] per Henriques J.
R v JJB [2004] Court of Appeal, Criminal Division (EWCA Crim) 14. See also TA v DPP [1997] 1 Criminal Appeal Reports (Sentencing) (Cr App R (S)) 1 (not reasonable to make order against parent when child was living in local authority accommodation at the relevant time and parent had no control over her at all).
Youth Justice Board, Youth Justice: Annual Statistics 2002/03, 53. The statistics do not record how many of these were to be paid by a parent. Cf. the very much greater number of offences recorded in the statistics: see no. 3, above. Where the police decide only to caution the offender, no question of a compensation order arises at all, though the offer of compensation may be relevant to the decision not to prosecute (see O’Doherty, Compensation and Young Offenders, [1997] Criminal Law Review (Crim LR), 282).
See, e.g., Attorney-General’s Reference (No. 3 of 1993) (1994) 98 Cr App R 84 (parents ordered to pay £ 500 after 15-year-old son’s rape of 15-year-old girl; the offence’s aggravating features and traumatic effect on the victim warranted the imposition of a custodial sentence).
http://www.statistics.gov.uk/STATBASE/Expodata/Spreadsheets/D7946.xls (accessed 5 April 2004).
Information from www.unicef.org.
See, e.g., A. Dugdale (ed.), Clerk & Lindsell on Torts (18th edn. 2000), §§ 4.55-60; A. Grubb (ed.), The Law of Tort (2002), §§ 2.39-42; and W.V.H. Rogers, Winfield & Jolowicz on the Law of Tort (16th edn. 2002), §§ 24.16-18. The topic has, however, received extensive analysis elsewhere in the common law world: see, e.g., F.H. Bohlen, Liability in Tort of Infants and Insane Persons, 23 (1924) Michigan Law Review (Mich.L.Rev.) 9, B. Dunlop, Torts Relating to Infants, 5 (1966) Western Law Review (West.L.Rev.) 116, and Law Reform Commission (Ireland), Report on the Liability in Tort of Minors and the Liability of Parents for Damage Caused by Minors (1985), LRC 17.
Royal Commission on Civil Liability and Compensation (Chairman: Lord Pearson), Report (1978), Cmnd 7054-1, ch. 27 (as noted above, fn. 30).
See infra no. 19.
See infra no. 14.
See, generally, A. Dugdale (supra fn. 50), §§ 4.56-59; A. Grubb (supra fn. 50), §§ 2.39-41; W.V.H. Rogers (supra fn. 50), §§ 24.16-17; and R. Bagshaw, Children Through Tort in: J. Fionda (supra fn. 1), 127–9.
Cf. the contrary approach adopted by most courts in the United States: see W.P. Keeton (ed.), Prosser and Keeton on Torts (5th edn. 1984), 180.
I.e. a person under the age of 18: Family Law Act 1969, sec. 1.
Civil Procedure Rules 1998, rule 21.2.2.
Jennings v Rundall (1799) 8 Durnford & East’s Term Reports, King’s Bench (Term Rep) 335.
Burnard v Haggis (1863) 14 Common Bench Reports, New Series (CB (NS)) 45. The scope of the rule and the exception are considered in A. Dugdale (supra fn. 50), § 4–57; A. Grubb (supra fn. 50), § 2.40; and W.V.H. Rogers (supra fn. 50), § 24.17.
Cf. the “control” test established by Wheat v E Lacon & Co Ltd [1966] Appeal Cases (AC) 552.
Smith v Stone (1647) Style’s King’s Bench Reports (Style) 65 82 English Reports (ER) 533; Public Transport Commission v Perry (1977) 137 Commonwealth Law Reports (CLR) 107.
Tillander v Gosselin [1967] 1 The Ontario Reports (OR) 203, Ontario High Court (three-year-old boy). The issue seems not to have been raised in any decided English case. See further Law Reform Commission (Ireland) (supra fn. 50), 2–3.
For a general statement that the proven or likely existence of liability insurance can have no effect on the court’s decision as to liability, see Hunt v Severs [1994] 2 AC 350, 363 per Lord Bridge. Lord Denning’s well-known statement to the contrary in Nettleship v Weston [1971] 2 Queens’s Bench (QB) 691, 699–700 cannot be accepted as correct in strict law, though (as noted in the text) it may well be that insurance considerations exert a covert influence on judicial determinations of liability issues.
Mullin v Richards [1998] 1 Weekly Law Reports (WLR) 1304. See also Staley v Suffolk County Council, 26 November 1985, unreported. In Gorely v Codd [1967] 1 WLR 19, another negligent shooting case, Nield J found liable a 16-year-old defendant with learning difficulties without considering what standard of care was appropriate.
See supra fn. 67.
Cf. Goldman v Hargrave [1967] 1 AC 645 (adult’s physical capacity to be taken into account).
[1998] 1 WLR 1304.
(1966) 115 CLR 199.
(1966) 115 CLR 199, 234.
[1998] 1 WLR 1304, 1308.
See Nettleship v Weston [1971] 2 QB 691.
(1966) 115 CLR 199, 213–4 (emphasis added).
The contrary approach has been adopted by courts in the United States: see W.P. Keeton (ed.) (supra fn. 55), 181–2. For a review of American and other common law authorities, see Law Reform Commission (Ireland) (supra fn. 50), 14–27. After considering the arguments for and against an adult activities rule, the Commission concluded that it was inherently uncertain and liable to cause injustice, and recommended against its adoption in Ireland (58).
See Tauranga Electric-Power Board v Karora Kohu [1939] New Zealand Law Reports (NZLR) 1040 (New Zealand Court of Appeal): seventeen-year-old cyclist.
A. Mullis/ K. Oliphant, Torts (3rd edn. 2003), 122 (example of a 15-year-old tearaway who hotrods a motorcar and drives away). See also McEllistrum v Etches (1956) 6 Dominion Law Reports (DLR) (2d) 1 and McErlean v Sarel (1987) 61 OR (2d) 396 (both Ontario Court of Appeal).
Cf. § 829 Bürgerliches Gesetzbuch (German Civil Code, BGB), § 1310 Allgemeines Bürgerliches Gesetzbuch (Austrian Civil Code, ABGB).
Minors’ Contracts Act 1987, sec. 3.
(1868) Law Reports (LR) 3 House of Lords (HL) 330.
See also A. Grubb (supra fn. 50), § 2.39.
Road Traffic Act 1988, sec. 143.
Under Dangerous Wild Animals Act 1976, sec. 1(6)(iv) the licence-holder (who must be an adult) must insure himself and any other person who is entitled to keep the animal (i.e. to have it in his possession: sec. 7(1)) against liability for any damage which it may cause. Damage includes the death of, or injury to, any person (sec. 7(4)).
Under Riding Establishments Act 1964, sec. 1(4A) the licence-holder must be insured against liabilities arising out of the hire or use of his horses by those hiring a horse or receiving paid riding instruction.
Association of British Insurers, Insurance Facts and Figures 2001 — A Commentary (2003), 27.
See generally Insolvency Act 1986.
See, for this and the following section, A. Dugdale (supra fn. 50), § 4.60; A. Grubb (supra fn. 50), § 2.42; W.V.H. Rogers (supra fn. 50), § 24.18; and R. Bagshaw, Children Through Tort, in: J. Fionda (supra fn. 1), 130–2.
Law Reform Commission (Ireland) (supra fn. 50), 27–32.
Animals Act 1971, sec. 2.
See, e.g., Newton v Edgerley [1959] 1 WLR 1031 (father’s failure to instruct son in use of gun when other children were around). Cf. Donaldson v Niven [1952] 2 All England Law Reports (All ER) 691 (father forbidding use of rifle outside house; no negligence) and Gorely v Codd [1967] 1 WLR 19 (father giving 16-year-old son adequate instruction in use of gun; not necessary for him to supervise its use).
See, e.g., Gorely v Codd [1967] 1 WLR 19, above. See also North v Wood [1914] 1 King’s Bench (KB) 629 (father not liable for injury done by his 17-year-old daughter’s dog, which he knew to be savage but allowed her to keep, as she was old enough to be regarded as its keeper). Cf. Animals Act 1971, sec. 2, above.
Carmarthenshire County Council v Lewis [1955] AC 549.
Civil Liability (Congenital Disabilities) Act 1976, sec. 2.
See Contracts (Rights of Third Parties) Act 1999.
See, e.g., Carmarthenshire County Council v Lewis [1955] AC 549 (driver injured after swerving to avoid a young child who had strayed from the playground of the defendant’s school).
Jackson v London County Council (1912) 28 Times Law Reports (TLR) 359 (builders’ rubble used as projectile). Cf. Ricketts v Erith Borough Council [1943] 2 All ER 629 and Rich v London County Council [1953] 1 WLR 895 (supervision found to be adequate on the facts of both cases).
Cf. Barnes v Hampshire County Council [1969] 1 WLR 1563 (liability to the child). Older children may need less supervision at the end of the school-day, or none at all: see Wilson v The Governors of the Sacred Heart [1998] Personal Injury Quantum Reports (PIQR) P145.
Bradford-Smart v West Sussex County Council [2002] 1 FCR 425 (no breach of duty on the facts).
See, e.g., Ricketts v Erith Borough Council [1943] 2 All ER 629 and Rich v London County Council [1953] 1 WLR 895.
Cf. Mullin v Richards [1998] 1 WLR 1304.
Wilson v The Governors of the Sacred Heart Roman Catholic School [1998] PIQR P145 (not necessary to have a duty teacher supervise students’ passage from school buildings to school gate after class).
Rich v London County Council [1953] 1 WLR 895, 905 per Morris LJ.
This is a matter of the general law of vicarious liability: Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555.
Social Security (Recovery of Benefits) Act 1997.
See, e.g., Mullin v Richards [1998] 1 WLR 1304, discussed in supra no. 14.
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Oliphant, K. (2006). Children as Tortfeasors Under the Law of England and Wales. In: Martín-Casals, M. (eds) Children in Tort Law Part I: Children as Tortfeasors. Tort and Insurance Law, vol 17. Springer, Vienna. https://doi.org/10.1007/3-211-31132-7_5
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