Should parents be punished instead of children or should the children themselves be disciplined when they commit an offence?

...crime prevention should start with improving parenting- Ann Marie Mangion

This is quite a tricky question because if children are under parental responsibility, the parents are ultimately responsible for the actions committed by their children. For example, in Roman law, the householder was responsible if his child threw or poured things from the householder’s dwelling onto the street to harm people passing by. The child might have been acting on his own accord without any cajoling from the householder but, ultimately, the householder was responsible.

So, likewise, should the parents be held responsible for their children’s actions even if such actions were done unbeknownst to their parents?

Parental responsibility is invoked in many cases, such as when it comes to the care, education, welfare, maintenance and the administration of the children’s property. However, what about criminal actions?

If children are deemed to be under the responsibility of the parents, should parents be made to answer for their children’s actions too?

In Malta, parental responsibility is styled as parental authority, therefore, children are not simply under the responsibility of the parents but, more than that, they are under the authority of the parents. This might seem like a sound argument but, in reality, is it so?

If parents are made to pay for their children’s offences will that really prevent children from reoffending?

It has been proven by research that there is an aetiological link between child offending, the family and educational situations. Research shows that children who hail from financially poor communities, dysfunctional families, have no educational attachment and where discipline is harsh and erratic are highly likely to engage in criminal activities.

Therefore, by financially punishing a family that is already experiencing dire financial difficulties will not be a “lesson learnt” and will certainly not prove a crime deterrent. It will only serve to push the child offender to reoffend.

But can parents in Malta really be held accountable for the acts and behaviour of their children?

The question is not whether parents should or should not be held accountable but whether they can in fact be held accountable.

Article 35(3) of the Criminal Code states that where children are under nine years of age and are, therefore, exempt from criminal responsibility and where children under 14 years of age and have acted without mischievous discretion, “the court may, on the application of the police, require the parent or other person charged with the upbringing of the minor to appear before it and, if the fact alleged to have been committed by the minor is proved and is contemplated by the law as an offence, the court may bind over the parent or other person to watch over the conduct of the minor under penalty for non-compliance of a sum of not less than €11.65 and not exceeding €232.94, regard being had to the means of the person bound over and to the gravity of the fact”.

This is called parental bind-over, where parents are bound over to watch over their child’s actions and prevent him/her from reoffending. But does this really produce the desired effect? That is, does that really prevent the children from reoffending?

As expounded earlier, these children generally come from dysfunctional poor families where discipline is erratic and harsh and where crime is, on occasion, a problem already dealt with by the parents. So in this situation how can the parents be made to watch over their children’s actions?

And if a parental bind-over is not enough, in cases where the offence committed by the children is punishable with a fine, the court, instead of applying a parental bind-over, will “award the punishment against the parent or other person charged with the upbringing of the minor, if the fact could have been avoided by his diligence”.

Therefore, in this instance, the parents are fined for the actions of their children.

These two actions present a problem because if children under nine are exempt from criminal responsibility and if children under 14 are likewise exempt if they do not possess mischievous discretion, then why are parents being punished in their stead? Does fining the parents, or imposing a parental bind-over, really prevent a child reoffending?

The answer is no. It will cause net-widening because, more than likely, such children will reoffend because nothing is done to help children not to reoffend.

It would make more sense if, instead of fining the parents or imposing a parental bind-over, the parents were forced to attend parenting classes to help them in their parenting skills.

Research has proved that there is a correlation between juvenile crime and the family. Therefore, crime prevention should start with improving parenting. Just like there are treatment orders and protection orders, there should be parenting orders.

Dr Mangion is a lawyer and a published author with a special interest in family and child law.