Child (in civil wrongs)

An inquiry into the notion of “child” can be undertaken in many areas of law, each of which offers insight into the contours and significance of the term. In a complementary way, paying attention to the “child” has the capacity to enrich our understanding of the preoccupations particular to any legal domain under scrutiny. In this short essay, the law governing the rapport between wrongdoing and consequential suffering is explored as both relevant to, and revealed by, children. Childhood, while sometimes referred to as carefree, is marked by the fundamental elements of the private law of civil wrongs: restraint, responsibility, and repair. An anonymous and untitled poem, published in the Oxford Book of Poetry for Children, introduces this reflection on the “child” in the law of civil wrongs: If we take the striking message of the poem seriously—as, no doubt, young readers are meant to—we learn that children who do care control their comportment, keep their hands off others, and thus avoid the horrendous consequences that otherwise await them. Children are prompted to laugh—somewhat nervously—at the prospect of having the capacity to care boiled into them. This dramatic lesson on care reminds us that individual comportment, scope of responsibility, and obligation to restore are not only the foundations of the language and law of civil liability, but also crucial pieces of childhood from infancy through adolescence. We begin with the intersection of childhood and the allocation of responsibility for the consequences of one’s behaviour. We then turn to protected interests and injury, with specific attention to children. Teaching this area of law in an integrated or “transsystemic” way provokes a particularly rich inquiry into the “child” as juridical concept and construct: issues that might otherwise remain marginal emerge and enhance our critical understanding of restraint, responsibility, and repair. That is, the “child” as focal point brings together norms, words, and sources from various normative systems, all of which are concerned with how we behave, react, repair, and resolve. Failing to take the requisite degree of care, or to act as the reasonable person would in the circumstances, is the trigger for responsibility in the tort of negligence and according to the general obligation set out in article 1457 of the Civil Code of Quebec. Confronted with a young producer of harm, the law is forced to unpack its reasonableness standard. The child is obviously neither a “reasonable man” nor a “bon père de famille.” But can children be held to a “reasonable person” norm, such that their harmful actions are labeled “wrongdoing”? A glance at common law tort textbooks shows that the traditional site for the consideration of children is a section on “infants, married women and lunatics,” albeit sometimes less colourfully named. The message is that individuals requiring special consideration are those traditionally defined as less able in some way, and thus impossible to subject to the expectations of the “reasonable man.” If officially labeled infants, children are never accountable for their harmful actions; they can be careless without consequence. The simplicity of such an analysis belies its unsatisfactory nature. Particularly in the age range corresponding to the development of capacity, understanding, and responsibility, the jurisprudence reveals a range of responses that deepens an appreciation of child as wrongdoer. The extended stage in childhood of “becoming responsible” provokes an array of possible approaches to the liability of young people, nicely captured by the Australian case of McHale v. Watson. In assessing the responsibility of a twelve-year-old boy who sharpens and then throws a metal dart at a post—resulting in injury to a female companion …