Is There a Basis to Punish Parents for Their Children’s Misbehaviour?

The article discusses whether there is a basis to punish parents for their children’s misbehaviour by considering China’s recent family education promotion law where parents can be punished for their children’s bad behaviour. In light of this, the article explores the minimum age of criminal responsibility in Singapore. The article then discusses some of the policy reasons against punishing parents before exploring the legal treatment of minors in the areas of contract and employment law. Finally, the article examines some of the situations where punishing parents for their children’s misbehaviour may be justified.

China’s Family Education Promotion Law

In October 2021, China’s parliament adopted the Family Education Promotion Law (FEPL) to, inter alia, punish parents if their minor children exhibited very bad behaviour or commit crimes.¹“China drafts law to punish parents for children’s bad behaviour” (19 October 2021) CNN World <https://edition.cnn.com/2021/10/18/china/china-punish-parents-intl-hnk/index.html> (accessed 28 January 2022). Under the Law of the People’s Republic of China on the Protection of Minors, “minors” refers to citizens under the age of 18.²“Law of the People’s Republic of China on the Protection of Minors” (17 October 2020) The National People’s Congress of the People’s Republic of China <http://www.npc.gov.cn/npc/c30834/202010/82a8f1b84350432cac03b1e382ee1744.shtml> (accessed 1 February 2022). If a minor is found to exhibit very bad or criminal behaviour, their parents may be reprimanded and ordered to undergo family education guidance programmes. Under the FEPL, parents of minor children shall be responsible for family education while the state, schools, and society, provide guidance, support, and services for family education.³“China adopts new law on family education promotion” (23 October 2021) China Daily <http://www.chinadaily.com.cn/a/202110/23/WS61739a5ca310cdd39bc70c96.html> (accessed 28 January 2022). Family education refers to parents’ guidance, influence, and nurturing of their minor children in terms of morals, character, physical calibre, life skill, culture literacy, and behavioural habits to promote the overall healthy growth of their minor children.⁴“Law of the People’s Republic of China on the Promotion of Family Education” (23 October 2021) The National People’s Congress of the People’s Republic of China <http://www.npc.gov.cn/npc/c30834/202110/8d266f0320b74e17b02cd43722eeb413.shtml> (accessed 28 January 2022).

China’s FEPL has led to the debate of whether countries should punish parents for their children’s misbehaviour. Before considering the policy objectives of punishing parents for their children’s misbehaviour, we look at the minimum age of criminal responsibility in Singapore.

Minimum Age of Criminal Responsibility

A “minor” is a person who is under the age at which he legally becomes responsible for his actions.⁵Oxford Learner’s Dictionaries <https://www.oxfordlearnersdictionaries.com/definition/english/minor_2#:~:text=minor-,noun,are%20responsible%20for%20your%20actions> (accessed 2 February 2022). In Singapore, the minimum age of criminal responsibility (MACR) has been raised from seven to 10 years old pursuant to the Criminal Law Reform Act 2019. This is in line with Australia’s and England’s position (see section 50 of the UK Children and Young Persons Act 1933, and sections 7.1 and 7.2 of Australia Criminal Code Act 1995, respectively). The rationale of this was as follows: “[c]hildren below 10 years old, and those between 10 and 12 years old who are not mature enough to understand the nature and consequences of their conduct, will not be convicted” (Singapore Parliamentary Debates, Official Report (6 May 2019) Vol 94, by Mr Amrin Amin, Senior Parliamentary Secretary, Ministry of Home Affairs).

In general, save for limited circumstances, a parent would not be liable for the wrongful actions committed by his child.⁶“Child X injures my child; do I sue Child X’s parent or child X?” (28 September 2017) Singapore Legal Advice <https://singaporelegaladvice.com/law-articles/child-x-injures-my-child-do-i-sue-child-xs-parent-or-child-x/> (accessed 6 February 2022). For example, a parent bought a karambit folding pocket knife for his child, who is obsessed with first-person shooter games. The child, imitating the use of a karambit as melee weapon in the game, uses the karambit to slash the domestic helper. Assuming that the child is above the MACR, the child possibly commits an offence of voluntarily causing hurt under section 321 of the Penal Code 1871, punishable under section 323 of the Penal Code 1871. The victim (i.e. the domestic helper) may also sue the child under the tort of battery for damages. The parent may be guilty of an offence of abetment by aiding under section 107(1)(c) read with section 321 of the Penal Code 1871. If the parent is guilty of negligence, the victim may have a cause of action against the parent under the tort of negligence. If there were a few slashes which eventually resulted in the death of the domestic helper, the parent may be guilty of an offence under section 304C of the Penal Code 1871 for allowing the death of the domestic helper.

On 22 November 2021, an 18 years old teenager was sentenced to a total of 27 months’ probation for aiding his friend to voluntarily cause hurt to the victim and for being part of an attempted robbery sometime in 2019. The District Judge, having called the teenager’s parents to the stand, noted that the teenager was their second son on probation. The District Judge further noted that the teenager’s parents “have to supervise and monitor the type of friends he makes”.⁷Osmond Chia, “This is a final chance given to you’: Judge told teen involved in ITE bread knife attack” (22 November 2021) The Straits Times <https://www.straitstimes.com/singapore/courts-crime/judge-hauls-up-teens-parents-in-court-urges-them-to-supervise-him-after-his> (accessed 6 February 2022).

Policy Explanations Against Punishing Parents

Even though the MACR in Singapore is 10 years old, parents of adolescents should be responsible for the supervision and guidance of their children. However, it may not be fair on policy grounds to punish parents for their children’s misbehaviour in the situations described below.

Sandwiched Class

Adolescence is the phase of life between childhood and adulthood, from ages 10 to 19.⁸“Adolescent health” World Health Organization <https://www.who.int/health-topics/adolescent-health#tab=tab_1> (accessed 6 February 2022) It is a period of life during which peers play a pivotal role in decision-making.⁹Simon Ciranka and Wouter van den Bos, “Social Influence in Adolescent Decision-Making: A Formal Framework” (29 August 2019) frontiers in Psychology <https://www.frontiersin.org/articles/10.3389/fpsyg.2019.01915/full> (accessed 6 February 2022). In other words, adolescents are more susceptible to negative peer influence. Thus, parents of adolescents should be responsible for the supervision and guidance of their children. However, time necessary to supervise children is not a common luxury. An example would be parents from the “sandwiched generation”. The “sandwiched generation” refers to people who are caring for both children and parents at the same time.¹⁰Ang Bee Lian, “Sandwiched Generation” (3 July 2015) Ministry of Social and Family Development <https://www.msf.gov.sg/ODGSW/social-insights/Pages/2015-Sandwiched-Generation.aspx> (accessed 6 February 2022). Another example would be low-income families facing financial difficulties. Parents typically take on more jobs or menial jobs with extensive working hours to make ends meet. As such, the children are typically left alone at home after school to tend to themselves. In the absence of parental supervision and guidance in their growing years, these children are more likely to turn to outsiders for attention and hence are more susceptible to negative peer influence and pressure. As a result, they are more likely to turn to youth delinquency.

Section 50 of the Children and Young Persons Act 1993 provides that parents can apply to the Youth Courts for a “Beyond Parental Control” order to be made against their uncontrollable children, which include children who exhibit delinquent traits, who are below the age of 16 years at the point of such order. In 2018, it was reported that the number of Beyond Parental Control cases, which include youths who exhibit delinquent traits (i.e. youths who play truancy, join street gangs, engage in drugs and substance abuse, etc.), hit a 10-year high.¹¹Cheow Sue-Ann, “Beyond Parental Control cases hit 10-year high” (1 March 2019) The New Paper <https://tnp.straitstimes.com/news/singapore/beyond-parental-control-cases-hit-10-year-high> (accessed 6 February 2022). In such cases, it may be unfair to punish parents for their children’s misbehaviour since such misbehaviour is not attributable to a lack of parental supervision and guidance but rather, the children themselves are unreceptive to parental guidance.

Medical Conditions

If a child misbehaves and it is a result of bad parenting, then there may be a basis to punish the parent. However, it is not always clear in practice. A child could suffer from a medical condition that affects their behaviour, or a learning disability could cause some aspects of the child’s development to be delayed. For example, a child suffering from seizures of juvenile myoclonic epilepsy could accidentally hit someone else in the arm due to a brief jerk of a muscle of the child’s arm.¹²“Juvenile myoclonic epilepsy” National Center for Advancing Translational Sciences <https://rarediseases.info.nih.gov/diseases/6808/juvenile-myoclonic-epilepsy#:~:text=Juvenile%20myoclonic%20epilepsy%20is%20an,first%20awaken%20in%20the%20morning.> (accessed 9 March 2022). In such a situation, there is no basis to punish the parent. In many cases, these factors may be unknown or unidentified. Furthermore, parents could be in the process of seeking out a solution for their child’s misbehaviour but have not found it yet. If parents could be punished for children’s misbehaviour, there might be a possibility that this will increase the instances of child abuse.

Manipulation

Then, there is the argument that unless a parent manipulates a child into committing a crime or the crime is a direct result of negligence on the part of the parent, there should be no criminal responsibility.¹³Barton Deiters, “Law Talk: When are parents legally responsible for the actions of their children” (15 November 2011) <https://www.mlive.com/news/grand-rapids/2011/11/law_talk_when_are_parents_lega.html> (accessed 16 March 2022). Unless the parents have brought up the child completely isolated from society, society in general (which included extended family to teachers and peers) have an influence on the child. If the intention is to punish parents for not bringing up the child correctly, then it may be argued that this responsibility could be extended to punish every teacher or every adult that the child has come in contact with.

If a child commits a serious crime by killing someone, appropriate punishment should be meted to the child. The parent or an adult should only be punished if they were using the child to commit the murder to avoid criminal responsibility.¹⁴See “The case of Anthony Ler (2001) Guilty As Charged: Anthony Ler lured teen into killing his wife” (16 May 2016) The Straits Times <https://www.straitstimes.com/singapore/courts-crime/guilty-as-charged-anthony-ler-lured-teen-into-killing-his-wife> (accessed 16 March 2022).

There are other arguments as well. Parents should not be punished for the crimes committed by their children but parents should be obligated to pay restitution if the child is unable to pay restitution to victims of criminal acts committed by the child, which essentially implies a financial liability.¹⁵Barton Deiters, “Law Talk: When are parents legally responsible for the actions of their children” (15 November 2011) <https://www.mlive.com/news/grand-rapids/2011/11/law_talk_when_are_parents_lega.html> (accessed 16 March 2022). Parents should not be sent to jail if their child killed a person, but they should be sent to jail if their negligent conduct towards their child led to the death of another (i.e. a parent handed a child rat poison and the child baked cookies without washing their hands).¹⁶Alice B Freer, “Parental Liability for Torts of Children” (1964) 53(2) Kentucky Law Journal 254-266. Then it is their negligent conduct that was the criminal act and not the child’s act.

Parents should not be liable for all actions of their children. It would simply be unreasonable and too burdensome. Procreation is a policy objective and the burden of raising a child should be a shared responsibility at the societal level. Punishing a parent would also seem to take away responsibility from the child.

Contract Law

Apart from MACR, we also look at the law’s treatment of minors where contract law is concerned. The common law age of majority in Singapore remains at 21 years of age. However, the law was changed in 2009 to allow individuals above 18 years of age to have contractual capacity in certain commercial activities. Sections 35 and 36 of the Civil Law Act 1909 states that, save for the types of contracts set out in section 35(4) of the Civil Law Act 1909, contracts entered into by minors who have attained the age of 18 years have the same effect as if they were contracts entered into by persons of full age. Such minors can now bring certain legal proceedings and actions in their own name as if they were of full age. The rationale for this was to remove legal barriers which may prevent young people from starting and conducting business activities. The overall goal was to foster a more entrepreneurial society. For example, under section 145(2) of the Companies Act 1967, the minimum age to be a director is 18 years old.

Sale of Goods Act

As a general rule, contracts are not enforceable against minors.¹⁷Lee Pey Woan, Pearlie Koh and Tham Chee Ho, “Ch. 08 The Law of Contract” (30 April 2015) Singapore Law Watch <https://www.singaporelawwatch.sg/Headlines/ch-08-the-law-of-contract> (accessed 16 March 2022) at 8.6.2. However, under section 3(2) of the Sale of Goods Act 1979 (SGA), where “necessaries” are sold and delivered to a minor or to a person who is incompetent to contract by reason of mental incapacity or drunkenness, he must pay a reasonable price for them. Under section 3(3) of the SGA, necessaries means goods suitable to the condition in life of the minor or other person concerned and to his actual requirements at the time of sale and delivery.

Employment Law

Generally, under the Civil Law Act 1909, people who are above the age of 18 will have the capacity to enter into an employment contract.

Under the Employment Act 1968 (EA) and the Employment (Children and Young Persons) Regulations (ECYPR), it is provided that no child below the age of 13 shall be “employed” in any occupation (section 68(2) EA read with regulation 3 of the ECYPR). Children above the age of 13 are able to start working in Singapore. However, “children and young persons” face restrictions in the type of work they are allowed to do.

Children above the age of 13 may be employed for light duties as long as the work is in a non-industrial setting. Examples of industrial work include undertakings in construction work, shipbuilding, transformation or transmission of electricity or motive power, the transport of passengers or goods and undertakings in which articles are manufactured, assembled, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished (section 2 of the EA).

Children between 15 and 16 years of age may be employed in an industrial setting, provided that: they have been examined by a registered medical practitioner and certified to be medically fit (section 67A of the EA read with regulation 4 of the ECYPR); the employer notifies the Commissioner of Labour within 30 days (regulation 15 of the ECYPR); and the industrial undertaking concerned has not been declared by the Minister of Labour to be an undertaking in which young persons are not to be employed. Certain forms of work are also considered unsuitable for children under the age of 16. These include, but are not limited to, an occupation involving: (i) work conditions that may cause injury (regulation 10(1) of the ECYPR), (ii) servicing or attending to moving machinery (regulation 12(1) of the ECYPR), (iii) being near live electrical apparatus that is not effectively insulated (regulation 13 of the ECYPR), or (iv) underground work (regulation 14 of the ECYPR).

Breaches of these regulations can constitute a criminal offence by either the employer as well as any parent or guardian who knowingly or negligently allows such employment and shall be liable on conviction to a fine not exceeding $5,000 and/or imprisonment for a term not exceeding two years (section 74 of the EA).

Policy Reasons for Punishing Parents

In 2013, it was reported that two girls in Florida, aged 14 and 12, were arrested and charged with aggravated stalking, i.e. cyberbullying. They tormented a 12-year old girl so relentlessly that the victim leapt to her death from a tower in an abandoned concrete plant. The Polk County Sheriff Grady Judd said that he would charge the parents if he could but there were no obvious charges that could be made out against them.¹⁸Mark O’Mara, “Should parents be criminally liable for kids’ cyberbullying?” (20 October 2013) CNN <https://edition.cnn.com/2013/10/18/opinion/omara-parents-cyberbullying/> (accessed 16 March 2022). At present, ignorance and apathy about a child’s cyberbullying is not a criminal offence. But if a child breaks the law using a computer or cell phone provided by the parent, how is that different? Technology given to children by parents can be used to break the law and inflict harm. The internet has made it a lot easier for those who wish to harass, antagonise or bully others.¹⁹Anuradha Rao, “Commentary: Cyberbullying just keeps getting worse. Even COVID-19 hasn’t dampened its spread” (4 June 2020) ChannelNewsAsia <https://www.channelnewsasia.com/commentary/cyber-bullying-getting-worse-even-covid-19-thivya-suicide-935071> (accessed 16 March 2022). It is a place where emotional injury can be inflicted in an anonymous and detached way. If parents do not assume responsibility for their children’s online access on their own, then legislation that places legal responsibility on parents and making them liable for what the children do with the online access parents provide would seem persuasive.²⁰Andrew Vaughan, “Punished for being a parent of a bully” (23 August 2013) The Globe and Mail <https://www.theglobeandmail.com/opinion/editorials/punished-for-being-a-parent-of-a-bully/article13939363/> (accessed 16 March 2022). The threat of cyberbullying is real. Legislation holding parents liable if they do not take responsibility for their children’s online behaviour would provide the much needed motivation for parents to get involved in their child’s online lives.²¹Justin W Patchin, “Holding Parents Responsible for Their Child’s Bullying” (17 June 2013) Cyberbullying Research Center <http://cyberbullying.org/holding-parents-responsible-for-their-childs-bullying> (accessed 16 March 2022). See also, Barton Deiters, “Law Talk: When are parents legally responsible for the actions of their children” (15 November 2011) <https://www.mlive.com/news/grand-rapids/2011/11/law_talk_when_are_parents_lega.html> (accessed 16 March 2022).

Other Views

The SGA makes it clear that minors who enter into contracts for “necessaries” would be required to pay a reasonable price for them. The employment law is clear that only children above 13 years old can work. So, they would be covered under the MACR since the MACR is 10 years old. However, the Ministry of Home Affairs has stated that children aged between 10 and 12 who are not mature enough to understand the nature and consequences of their conduct will not be convicted.²²Tan Tam Mei, “Parliament: Minimum age of criminal responsibility to be raised from 7 to 10” (7 May 2019) The Straits Times <https://www.straitstimes.com/politics/parliament-minimum-age-of-criminal-responsibility-to-be-raised-from-7-to-10> (accessed 16 March 2022).

While we explored situations earlier to demonstrate why punishing parents is not persuasive on policy grounds, on the other hand, a case could be made by analogising with company law and artificial intelligence (AI) principles. China’s FEPL is a ground-breaking development and cements the fact that the prime responsibility for children’s upbringing lies with their parents (see arguments raised by Raymond Arthur in “Punishing Parents for the Crimes of Their Children” published in 2005), which raises some AI and “degree of control” issues. In the first writer’s earlier peer-reviewed paper on Springer Nature’s SN Social Sciences,²³Ben Chester Cheong, “Granting legal personhood to artificial intelligence systems and traditional veil-piercing concepts to impose liability” (2021) 1(9) SN Social Sciences 231, pp 1-20 <https://link.springer.com/article/10.1007/s43545-021-00236-0>. the writer argued that strong AI systems might ultimately not recognise that they have a “parent”. Children, unlike adults, rely heavily on parental upbringing. If we compare it to AI, those formative years would be known as the “machine/deep learning” phase, and there is an arguable case for making parents liable for their children’s misdeeds. The main difficulty is at what age of the child would it become unfair to punish parents if the acts or omissions of their child becomes totally unforeseeable to the parent. A parallel can be drawn with the “degree of control” in company law, and the latest case in a line of cases concerning a parent company’s liability for their subsidiary company’s tortious act is Okpabi v Shell [2021] UKSC 3. In this case, in a unanimous reversal of the Court of Appeal, the UK Supreme Court concluded that it was at least arguable, based on the degree of control and de facto management, that the parent company owed a duty of care to the claimant Nigerian citizens in respect of alleged environmental damage and human rights abuses by Shell’s Nigerian subsidiary. It may be controversial to punish parents for their children’s misdeeds but this is not novel, at least by judging it from a company law standpoint.

Conclusion

In conclusion, this article argues that if one of the policy reasons militating against punishing parents is made out, then there is a strong case that parents should not be punished for their children’s misdeeds. However, China’s FEPL focuses on parental responsibility at a time where the advent of the internet and the proliferation of technological devices such as mobile phones have given rise to a new form of bullying. If analysed in terms of the control that parents have over their young children and the situations of harm that may be caused by young children, especially in cases of cyberbullying, it becomes particularly important that parents intervene and supervise their young children at an early stage. While this may be somewhat paternalistic from a social policy perspective, the possibility and risk of criminal sanctions on parents may be the impetus to drive home the importance of parental supervision.

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