Children through Tort

Abstract

This chapter seeks to reveal how children and childhood are conceptualized by English tort law. It proceeds by presenting an overview of the tort duties imposed by English law on, to and about children. Three principal conclusions are reached. First, although children are regarded as capable of owing and being owed legal duties they are not equated with adults. Consequently, every person in society must take the risk of being injured by children behaving like children, though this burden is in practice borne largely by children. This risk is limited to some extent by the imposition of duties on those who control children and the dangers which children may trigger. These duties fall principally on parents, and those such as teachers who take on quasi-parental roles. Indeed, parental obligations are relied on to justify reducing the obligations that others, such as occupiers of land, might otherwise owe children. Further, although tort law is willing to permit injured children to sue their own parents this opportunity is rarely taken in practice. Secondly, the role of the state in protecting and providing for children is still an area of controversy within English tort law. But during the last decade English law has gradually become more willing to treat failures of the social welfare system as giving rise to claims for damages. There has been a pronounced improvement in protection through tort law of children's interests in educational attainment. Thirdly, it is arguable that English law offers inadequate protection to a child's interest in the life and health of its parents. Statute allows children to claim for loss of financial and other dependency following the death of a supporting parent, but where a supporting parent is injured the same interest is only protected indirectly since it is up to the injured parent to claim for the cost of providing substitute care and support. Furthermore, compensation will never be paid for grief or loss of the emotional bond. The reason for this is not that tort law regards the financial role of parents as more important than the emotional role. Rather the special emotional interests of children fall victim to a more general concern that tort law does not have the capacity to try to redress most forms of distress and emotional harm.