one day before her eighteenth birthday and Alain one day after his eighteenth birthday will find himself dealing with two different legal regimes. In the former case, the parents will be strictly liable save for limited defences. In the latter case, the parents will not be liable and the victim will have to prove fault under the ordinary rules of delictual liability.123 Such a distinction appears at best arbitrary, particularly as the victim will be unlikely to appreciate the exact age of the culprit at the time of the accident.

7.5 Conclusion: a common law doctrine of strict parental liability?

It is in this light that one readdresses the question raised in this chapter: should common law systems impose strict liability on parents for the harm caused to innocent third parties by their children? The models examined in this chapter indicate that legal systems have a choice between variants of fault-based liability or the strict liability model employed by the French; the vicarious liability model being rejected due to the difficulties in establishing proof of a tort by a minor. Indeed, the French example demonstrates that it is possible both to extend strict liability to the parent–child relationship and provide a working system funded by insurance. The 1997 Bertrand decision drew on extensions of vicarious liability elsewhere in French law, notably the Blieck case of 1991 discussed at 5.4.2,124 accepting that the person able to control the risk of injury and possessing authority over the person causing the damage should be treated as a guarantor of any resultant risk. Recognition that social risk should be met by the tort system has thus spread across a number of factual contexts. The French system does, however, have a number of failings. By removing the need for fault by either parent or child, it provides a model incapable of setting normative behavioural standards. Most worryingly, as a system based primarily on risk allocation via the mechanism of insurance, the absence of compulsory insurance raises the problem of gaps in cover. The burden on parents, liable whatever steps they take to control their unruly children, is extremely onerous.

123See Article 1382.

124Ass ple´n 29 March 1991 D 1991.324 note C. Larroumet, chr G. Viney p. 157, JCP 1991 II 21673, concl H. Dontenwille, note J. Ghestin.

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It is unsurprising that leading commentators have remarked recently that ‘in France today, the child is seen not as a sign of luck and the promise of a future, but as a source of trouble and risk’.125

In contrast, English law continues to adhere to a system based on fault and to prioritise principles of individual responsibility. A parent will be judged by the standard of the reasonable parent and the difficulties of parenting recognised. Although criminal law indicates that attitudes may be changing in relation to parental responsibility for the criminal conduct of minors,126 tort law continues to treat parents as ordinary tortfeasors. Oliphant is correct to identify that absence of insurance is an easy excuse. Liability would encourage insurance and existing cover could be extended at limited additional cost. What one sees is a resistance to extending parental liability for the acts of their children. The question remains whether this continuing opposition can be justified.

Any reform would be likely to require legislative intervention.127 In 1985, the Irish Law Reform Commission faced this question and resolved that, on balance, the imposition of strict or vicarious liability on parents would be unjust.128 The family, unlike a business, does not operate on a commercial basis under which the child can be regarded as an ‘expense’. Such liability would be ‘too drastic a solution’ and one which failed to take account of the difficulties of parenting in an increasingly liberal society. Waller, in one of the few common law articles on this topic, puts the argument more strongly.129 The parental position is distinct from other commercial bodies. They cannot spread the cost of their premium through the price of their product or services. (Indeed, the only way to spread the cost would be by reducing the child’s pocket money.) Further,

125H. Capitant, F. Terre´ and Y. Lequette, Les grands arreˆts de la jurisprudence civil, 12th edn (Paris: Dalloz, 2008), vol. II, p. 459 (my translation). It is noticeable that the Draft Common Frame of Reference, discussed in Chapter 9, in suggesting a set of model rules of European private law, at Book VI – 3:104 (accountability for damage caused by children or supervised persons), favours the German approach, providing that a person is not accountable under this Article for the causation of damage if that person shows that there was no defective supervision of the person causing the damage, limiting it also to parental care of persons under fourteen years of age: DCFR (see n. 71 above).

126See Leng, ‘Parental responsibility for juvenile’, pp. 330–1.

127Rogers, ‘Liability for damage’. Nevertheless, the Animals Act 1971 provides a precedent for such a reform: Animals Act 1971, s. 6(3) deems the head of the household to be keeper of the animal owned (or possessed) by a member of the household under the age of sixteen.

128Report on the liability in tort of minors and the liability of parents for damage caused by minors

(LRC 17–1985) (see www.lawreform.ie/publications/publications.htm).

129P. L. Waller, ‘Visiting the sins of the children’, Melbourne University Law Review, 4 (1963–4), 17 at 38.

parents cannot ‘fire’ clumsy or deceitful children to terminate any future liability. In Waller’s view, ‘in a society where it is increasingly expensive and difficult to raise and educate children, it is suggested that there must be a real warrant, which does not so far appear to have been made, for imposing such strict liability.’130

The position in the United States is also revealing in this context. Whilst all forty-nine States (excluding New Hampshire) have statutes imposing some form of strict liability on parents for damage arising from the criminal acts of their children,131 the majority of this legislation was introduced in the 1950s and 1960s to deal with the problem of juvenile delinquency and therefore may be seen as an aspect of crime control. Such legislation represents a distinct penal policy initiative rather than a general move towards parental liability in civil law.132

Much therefore seems to depend on the particular social view taken of the parent–child–victim triangle and the desirability of tort intervention. Whilst French law is prepared to utilise the law of tort (or delict) to meet the risks caused by the immaturity of children, the common law courts have been more reluctant to condemn those struggling to bring up children. Respect for family autonomy and individual responsibility, the absence of a culture of parental liability insurance and a focus on criminal frameworks to deal with parental responsibility, signify that there is little support for change in the common law. In contrast, greater support may be found in recent years for holding primarily liable public bodies acting as ‘quasiparents’: for example, schools, foster parents, and adoption agencies. Such systemic negligence satisfies the basic requirements of tort law:133 focusing on fault and setting objective standards capable of improving and guiding future behaviour, whilst being targeted at bodies with the means to provide compensation to victims.

130Ibid., at 38–9. Waller argues for a reversal of the burden of proof. As seen in Germany, this will not necessarily have a great impact on claims – the real issue is what standard is set for parents by the system in question.

131See P. K. Graham, ‘Parental responsibility laws: let the punishment fit the crime’, Loyola of Los Angeles Law Review, 33 (1999), 1719 at 1725–29 and L. Gentile, ‘Parental civil liability for the torts of minors’, Journal of Contemporary Legal Issues, 16 (2007), 125, who lists in the appendix the parental liability provisions of every US State.

132Damages are generally limited by statute and the aim of the legislation is clearly juvenile crime control, not restitution: see, for example, the California Civil Code, Art. 1714.1.

133See M. Hall, ‘Institutional tortfeasors: systemic negligence and the class action’, Torts Law Journal, 14 (2006), 135.

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In essence, what one sees is a clash of philosophies as to the role of tort in familial matters: either using tort law to encourage individual responsibility through the mechanism of fault, or using tort law to provide a framework based on social risk to meet the risks created by children via the mechanism of household insurance. In choosing the former, the common law acknowledges the limitations of tort law as a mechanism for social change – such a role being left to criminal law as seen above. Although, as seen in this chapter, the standards of care set by the common law may seem generous and make too great an allowance for the perils of parenting, in recognising the pressures of parenthood and the limitations of the civil law in correcting anti-social behaviour, an attempt is made to establish realistic standards for caring for children. Whilst more can be done to reach a sensible balance between the rights of victims, parents and children, there is little sign of the fundamental change in approach needed to instigate a move from fault-based to strict liability.