Discuss the Extent and Limitations of the Application of This Principle in Education

A teacher is in loco parentis when a child is in his care… in return the teacher must assume certain responsibilities and must recognise that these obligations, partly legal and partly moral, rest upon him/her in every aspect of his work". G.R. Barrell. Discuss the extent and limitations of the application of this principle in education, and civil responsibilities of various players involved in schools in this regard, referring to Maltese case law where necessary.

        Originating from as early as the eighteenth-century in England, the legal doctrine of in loco parentis – literally meaning “in the place of a parent” – illustrates a parent-child relationship, referring to one who assumes parental responsibilities for another individual, without formally adopting the latter (Jackson, 1991). Such a case is the position of an educator. This legal doctrine has special implications that shape the rights and responsibilities of educators. It assumes parental rights, duties, and obligations to the latter. The British Children Act of 1989 states that while not legally bound by parental responsibilities, an educator must take on the role of a reasonable parent in safeguarding and promoting the welfare of one’s students, just as much as a reasonable parent would with his own offspring. This notion is supported by British case laws that establish that an educator should act “as a prudent father” or bonus paterfamilias (Zirkel & Reichner 1986).

Article 3 of the Civil Code (Chapter 16 of the Laws of Malta) stipulates that, “marriage imposes on both spouses the obligation to look after, maintain, instruct and educate the children of the marriage taking into account the abilities, natural inclinations and aspirations of the children.” Similar to the British Child Act of 1989, this article inaugurates that an educator should feel a sense of duty and responsibility towards his students – as a responsible father is committed towards his child. Albeit not specifying what punishments parents should use, Article 19 of the Children’s Rights Convention clearly emphasis the protection of children, stating that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection...”

“In its fullest form the doctrine of in loco parentis permits colleges to devise, implement and administer student discipline and to foster the physical and moral welfare of students. This latter notion of physical welfare is critical to institutional tort liability” (Stamatakos, 1990). Gott (as cited in Lake, 1999) argues that the exercise of legal power is intricately and inevitably bound with legal responsibilities, therefore, as educators headed students with parental authority, judiciary systems began to appreciate a correlative legal duties and obligations to safeguard the students over which such authority is exercised. The objective of liability is therefore to protect the children’s rights as recognised by the community.

Children’s rights can be boiled down mainly to the right to be and feel safe, and the right of access to a basic common core curriculum, as stipulated in our local case by the National Minimum Curriculum (2012). The Occupational Health and Safety Act (Chapter 424 of the Laws of Malta) states that every employer has the duty to ensure the health and safety of all persons effected in a workplace. In a local case of Michael Camilleri (legitimate representative of his son, Wayde Camilleri, a minor) vs. the Director of Education and the leading government doctor (2006), the plaintiff alleged that the defendants failed to maintain continuous supervision and failed to provide adequate medical care, respectively. As a respondent, the doctor argued that there was no nexus and that his negligence had no bearing on the damages suffered. The director of education argued that the incident happened due to the contributory negligence of the actors’ son who used the wrong tools and didn't follow instruction. In his appeal, the now actor Wayde Camilleri, who recently turned of legal adult age, claimed that the educational department was negligent in providing educators and students adequate means for instruction. After reviewing the case and in trying to find culpa – in the case of tort or quasi-tort, culpa is the lack of diligence of a bonus paterfamilias – the court found the department of education guilty of neglecting to ensure safety conditions such as adequate tools and safety wear. Culpa is therefore measured with a test of reasonableness of bonus paterfamilias.

In a similar case of Cassar vs. the Honorable Minister of Interior, the Commissioner of Land, the Minister of Education and Human Resources and the Director of Education (2004), the court heard how a sixteen year old student of “l-iskola tal-Arti u s-Snajja” in Targa Gap, limits of Mosta, fell down a neighboring shaft and suffered a reported 30% permanent disability, according to the orthopedic consultants involved. The first things that the court looked at was the negligence of the shaft being easily accessible by its vicinity and by the fact that the school gate was damaged.

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