THE APPLICATION OF IN LOCO PARENTIS IN STATE SCHOOLS: Still Relevant or Practically Extinct?
Introduction The ancient legal doctrine of in loco parentis still finds mention with regards to issues concerning children and young people. This is especially true in the education sector, where the question of the doctrine’s applicability is often raised in connection with issues of student welfare. One such area that is becoming increasingly relevant to this issue is the investigation and questioning of students at school by police officers and/or school staff in relation to alleged criminal activities. Other areas where in loco parentis is referred to include a school’s responsibility for student safety and discipline during school activities external to a school’s location and usual hours of operation. School trips fall into this latter category. The question central to the issue of in loco parentis in schools is: Can a school staff member legitimately assume the powers and responsibilities of a parent when an incident arises that affects the welfare and/or legal rights of a student? The answer to this question in the vast majority of cases will be no. In explaining this answer, this article will attempt to provide an overview of the doctrine of in loco parentis in its application to schools, from its origins and historical development, to the modern statutory framework of law that has arguably rendered it extinct, although it holds questionable symbolic value, in this area. The Origins of In Loco Parentis In loco parentis means “in place of the parent”. It has its origins in the Roman law doctrine of patria potestas, where a man’s child was effectively his property, whose development he could control at his discretion, including determination of the nature and terms of their intellectual education (Archard, 1993). In doing so a father would delegate his authority to teachers for the education of his sons (Crook, 1989). The doctrine was central to the Common Law of early nineteenth century England, where a father retained the power to determine whether or not his children were educated at all. During this era, the English jurist Blackstone described the application of in loco parentis in matters of education as follows: “He [the father] may also delegate part of the parental authority during his life to the tutor or school master who is then in loco parentis and has such a portion of the power of the parents committed to the charge, viz. that of correction and restraint, as may be necessary to answer the purposes for which he is employed.” (Stevens (ed.) Blackstone’s Commentaries 9th ed., vol.II, p.296. Quote sourced in Crook (1989) p. 447) Heather Crook observes that Blackstone considered that parental authority over a child represented the most fundamental power relationship in nature. Hence the position of the parent as the source of legal authority over the child, expressed in common law by the doctrine of in loco parentis. The English Courts of the late nineteenth century also espoused this position. Lord Justice Bowen expressed the fundamental significance of the doctrine in re Agar Ellis. Agar-Ellis v Lascelles (1883). “the Court must not be tempted to interfere with the natural order and course of family life (re Agar Ellis. Agar-Ellis v Lascelles [1883] 24 Ch 317, p.335)…To neglect the natural jurisdiction of the father over his child until the age of twenty-one would be really to set aside the whole course and order of nature and it seems to me that it would disturb the very
foundations of family life.” (p 336 ) However, around the same time, the legal system began to recognise the need and corresponding benefits of a compulsory state education system. The Elementary Education Act of 1870 provided England with its first statutory requirement of compulsory education. New Zealand first established a centralised compulsory childhood education system with the enactment of the Education Act 1877, the evolution of which triggered the decline of the legal applicability of in loco parentis to the education sector. Early Case Law The conflict that subsequently arose between the authority of the parent and the state, in determining the validity of the actions of teachers, was illustrated in the case law of the early twentieth century, particularly with regards to matters concerning corporal punishment. Mansell v Griffin (1908) illustrates the difficulties the judiciary initially had in attempting to reconcile the traditional notion of in loco parentis with a publicly regulated school environment. The case concerned a situation where an assistant teacher at a public elementary school inflicted corporal punishment on a student, despite the fact that she was not authorised to do so under the school’s regulations. The student filed proceedings for assault accordingly. The Court rejected the plaintiff’s suit on the grounds that, although the teacher’s actions were in breach of school regulations, the punishment that she inflicted was, in the circumstances, moderate, not of ill intent, and was administered in a manner that the parent of the child might expect their child to receive for disciplinary purposes. In explaining the Court’s position on the matter, Phillimore J stated: “…a teacher of a class has the ordinary means of preserving discipline, and as between the parent of the child and the teacher it is enough for the teacher to be able to say: ‘the punishment which I administered was moderate; it was not dictated by bad motive, and it was such as is usual in the school and such as the parent of the child might expect that child would receive if it did wrong.” (Mansell v. Griffin [1908] 1 KB 160, p 168) Hence the Mansell v Griffin decision provided early judicial support for retaining the in loco parentis principle within the public school system. However, R v Newport (Salop) Justices ex parte Wright (1929) shifted this position somewhat by upholding the authority of a teacher to punish a student pursuant to school regulations despite those regulations being contrary to the authority of a parent. R v Newport concerned the administration of corporal punishment (caning) of a student who was caught smoking in the streets. The court confirmed the teacher’s authority to administer the punishment, despite the fact that the student’s father had authorised the student to smoke, as the student’s actions were in breach of the school’s rules to an extent that was punishable by caning. However, the Court still referred to a delegation of parental authority in it’s reasoning, Lord Hewart stating: “…any parent who sends a child to school is presumed to give to the teacher authority to make reasonable regulations and to administer to the child reasonable corporal punishment for breach of those regulations.” (R v Newport (Salop) Justices ex parte Wright [1929] 2 KB 416, p 428) The Contemporary Position The lack of any mention of the in loco parentis model of school authority in modern case law indicates that the doctrine is no longer of much relevance in the education sector. In New Zealand, the Courts have little room to consider the application of the doctrine, given that the source of school authority is clearly encapsulated in the Education Act 1989. However, the
Courts have also shown an unwillingness to involve themselves in matters concerning school decisions that do not represent a serious breach of student rights, indicating that such matters are more appropriately dealt with at a local level. This was expressed by Williams J in Maddever v Umawera District School (1993), the leading New Zealand authority on the role of the courts in determining the limits of school power: “…the legislature has made it tolerably clear that such matters are not primarily judicial issues but rather issues of educational policy for school boards operating against the broad backdrop of the national education guidelines.” (Maddever v. Umawera District School [1993] 2 NZLR 478, p 506) It is arguable that this hands-off approach has led to in loco parentis retaining a level of conceptual or psychological relevance in the minds of local school boards in determining student matters, in the absence of any direct guidance on this issue from the Courts or the state. After all, a school board is populated by the parents of students who attend the school. In this context, it is perhaps unsurprising that in loco parentis remains an influential concept in school decision-making. Notwithstanding this issue, there are a number of factors that highlight the deficiencies of the in loco parentis doctrine in its application in the education sector in contemporary New Zealand. The first of these is that the legal power of state schools to control and manage their students is authorised in law by statute, not parents. Robert Ludbrook has stated that within the state education system, in loco parentis amounts to little more than a “ patent legal fiction”, as the terms of a student’s education are based on the statutory authority of the Education Act 1989, rather than a contractual model between parent and teacher (Ludbrook, 1990). Parents no longer choose to send their children to school, as they did in Blackstone’s day; rather they are required by statute to do so, facing civil penalties if they fail in this regard. The Education Act The Education Act 1989 is the backbone of the state education system, providing schools with the legal mechanisms with which to govern themselves, make rules, suspend and exclude students, establish enrolment schemes and so on. The Act conversely provides rights and directives to students such as compulsory education for students aged between 6 and 16, the right of free education for all persons between the ages of 5 and 19 (21 if the student has special needs) and special considerations for students with special needs. The legal validity of the actions of a state school and its staff are therefore determined within the parameters of its authority under the Act, and not by any legal authority delegated by parents. As Paul Rishworth (2001) has pointed out, in loco parentis cannot provide the source of school authority over students for the logical reason that this would result in parents being able to withdraw or modify that authority, something they clearly cannot do under the Education Act. To the contrary, parents are compelled by the legislation to send their children to school until they reach 16, contravention of which can result in the parents being liable for fines. The parts of the Act crucial to school power are sections 72, 75 and 76. These sections establish both the power of school boards to make rules (termed “by-laws”) for the control and management of the school and the extent to which the school board and the principal can utilize these rules for this purpose. A decision by a school that appears to exceed, or be inconsistent with, their powers under the Act may be challenged by a parent by way of an action for judicial review in the High Court. However, this process is too expensive for most parents to contemplate, and rarely offers any prospect of damages for the successful party. This reflects that the measure of a school’s administrative responsibility is to the state rather
than to parents. Having said this, it must be noted that the judicial arm of the state has expressed reluctance to review schools’ decisions in relation to students, unless the decision concerns a serious breach of a child’s rights (in Maddever v. Umawera District School (1993)). Children’s rights It is now recognised that children and young people have their own constitutional rights, independent of those of their parents. These rights are supported in New Zealand’s general law by the New Zealand Bill of Rights Act 1990, the Children, Young Persons and Their Families Act 1989 and the United Nations Convention on the Rights of the Child. The application of these rights in the state school environment is provided for by section 72, 75 and 76 of the Education Act, which expressly subordinate the otherwise unfettered decisionmaking powers of a school board of trustees to the “general laws of New Zealand”. Therefore, where a dispute involving a child’s constitutional right is involved, it is no longer appropriate to view the matter as involving a conflict between the parent and school only. Instead the legal conflict is trilateral, involving the legal rights and duties of all three parties. This highlights the deficiency of the doctrine of in loco parentis in its application to such conflicts, as the doctrine is exclusively bilateral in its application (Crook, 1989). By treating a parent’s legal authority over a child as a private contractual matter, in loco parentis has the effect of reducing the status of a child to that of a transferable commodity, and is thus clearly out of place in the modern state environment. This antiquated and outmoded view that children are commodities is reflected in old cases such as Mansell v Griffin, where the child at the centre of the case is referred to by the judge as “it”. In contrast, the United Nations Convention on the Rights of the Child, ratified by New Zealand in 1993, provides that children and young people have a basic right to participate in decisions that are being made about them. The Convention has direct relevance to schools, following the precedent set in the High Court case of Tavita v Minister of Immigration (1994), which established that the Convention is of relevance to any decision-maker exercising authority delegated from the state. This requirement alone defeats the bilateral delegation of authority evident in the doctrine of in loco parentis. In addition, the impact on the Common Law of the House of Lords case of Gillick v West Norfolk and Wisbech Area Health Authority and Another (1986) is also significant in contributing to the legal irrelevance of in loco parentis. In Gillick, the House of Lords upheld the decision of a doctor to give contraceptive advice to a girl aged under 16 without parental consent, provided she had sufficient mental competence to understand the issues involved. As Crook (1989) observes, the scope of the decision goes well beyond that of the medical profession, as the decision affirmed the right of children to a degree of autonomy in their decision-making: “For it seems clear from Lord Scarman’s formulation, in particular, that the parental right yields to the child’s when he reaches a sufficient understanding and intelligence to be capable of making up his own mind, ‘on the matter requiring decision’. Thus with regard to matters such as the wearing of uniform, school policy and, perhaps most significantly, choice of subjects, the opinion of the child will be as (if not more) important than that of the parents.” [emphasis added] (Crook, 1989, p. 449) Additional Legal Requirements In addition to these constitutional obligations, a school’s authority over its students is subject to the requirements of other relevant statutes. Examples include the Health & Safety in Employment Act 1992 in relation to the safety of the school’s physical environment, and the Privacy Act 1993, concerning management of student records. It follows that schools can be
found liable for actions that breach their statutory duties. In addition, schools have a common law duty of care, breach of which could result in tortious liability for negligence. Areas of Ambiguity Despite the web of statutory law that seems to point to the fact that in loco parentis no longer applies in the state school sector, there remains the common assumption that parents have implicitly passed over their parental rights to the school and its teachers whilst their child is at school. One reason for this could be the lack of specific statutory guidance available to teachers with regards to their legal responsibilities towards their students. It is therefore assumed that the basis for a teacher’s actions towards a student is somehow [1] derived from the parents of that child, in the absence of any codified legal responsibilities. Whilst the actual legal application of the doctrine to the state education sector is negligible, it has been suggested that in loco parentis still holds a degree of metaphorical significance in explaining the relationship between teachers, students and their parents (Rishworth, 2001). This explains the fact that in loco parentis still finds mention where issues of student welfare arise. Rishworth suggests that the doctrine signifies that the state education system is there for the benefit of students, with state schools and their employees endeavouring to act in the best interests of students. He states, “that to say that schools act in place of parents is a useful reminder of how schools should act” (p. 25) Rishworth’s observation seems to suggest that the sanctity of the parent-child relationship, as encapsulated in the in loco parentis doctrine, is, psychologically if not legally, still near the centre of our social structure and thus of enduring significance. To some extent this reflects the writer’s anecdotal experience as an advocate in education disputes, where many parents consider that their authority over their children should, morally at any rate, supercede that of the school. Schools, in turn, often try to justify certain decisions that seem to fall outside the scope of their rules and policies on the grounds of in loco parentis. Delineation of Roles In reality the respective legal powers of parents and schools are clearly delineated in law without overlap. The right to use physical discipline is one of the most obvious examples of this delineation. The Crimes Act 1961 allows parents to use reasonable force to discipline their children, whereas teachers are explicitly prohibited from administering corporal [2] discipline, regardless of the attitude of a student’s parents on physical discipline . The legal position on this matter is widely known by parents and teachers alike. However, there are many other areas where there is considerable uncertainty, or at least misunderstanding. Another clear delineation is the subordination of a school’s powers to make rules to the requirements of the New Zealand Bill of Rights Act (BORA). Section 3 of BORA provides that any entity performing a public function is subject to the provisions of the Act accordingly. [3] Schools can only claim immunity from BORA if acting with statutory authority that is in direct conflict with, or can justifiably limit, the rights contained in the BORA. In loco parentis itself cannot be relied upon by a school to justify any actions that breach a student’s BORA rights, regardless of any questions of parental consent to a school practice that may be in breach. Conversely, the actions of parents, as private individuals, are not measured against BORA. Instead, the terms of parental authority are provided for and restricted by other
legislation, such as the Guardianship Act 1968, the Children, Young Persons and their Families Act and the Crimes Act. Case examples School administrations are faced with problems involving students that fall outside the scope of their written rules and policies, a pertinent example being the investigation and questioning of students in relation to instances of misconduct or illegal activities. This can, on occasion, lead to schools making decisions that appear to be somewhat arbitrary and without an identifiable legal mandate. It is in these areas of uncertainty that in loco parentis is most commonly raised by a school, in order to account for their actions in lieu of any gap in their rules and guidelines. Take the example of a police investigation on a school’s premises, an occurrence that is, unfortunately, becoming more frequent. On occasion, school staff have stood in place of parents during police interviews of under 17 year olds on school premises. This has been without the young person having nominated the teacher for such a role. This practice breaches the requirement under the Children, Young Persons & their Families (CYPF) Act that the police inform a young person aged 16 years or younger of their right to nominate an independent adult of their choice to be present during such proceedings. Schools have attempted to legally justify the presence of the teacher on the grounds that they were acting in loco parentis, due to practical difficulties in arranging a parent’s presence. However, the CYPF Act allows the student to choose the adult they wish to be present. If none are available, then the police must arrange the presence of an adult from their list of independent nominated persons (INP’s) prior to conducting the interview. The teacher’s presence is not automatically legitimate via in loco parentis. A teacher may only be present on consent of the student. In addition to the CYPF Act requirements, BORA issues may also be relevant in this scenario, such as the rights of a detainee under section 23(4) and (5) of BORA. The above example is a clear illustration of an instance where the doctrine can be mistakenly invoked and applied, despite the fact that it is clearly over-ridden by statutory requirements. This indicates that in loco parentis continues to be psychologically relied upon by schools and teachers as a source of authority in instances where they are uncertain or uninformed of the actual legal position. Another area in which the doctrine is often mentioned as having possible application, relates to school activities that are held outside both the school premises and normal school hours, such as a school camp for example. There are differing arguments about the application of in loco parentis in this area. It has been suggested that school staff have residual authority, express or implied, over students whose parents have consented to their attendance at such an activity (Walsh, 2001). However, another line of argument takes the view that whilst the supervisory functions of a teacher over students in this context can be equated more readily with those of a parent (eg. making sure the students are fed and sheltered adequately), these functions are still ultimately derived from the state via sections 72, 75 and 76 of the Education Act (Rishworth, 2001). Specific tasks (the example given being the administration of medication) may be seen as having authority delegated to a school staff member in loco parentis without impacting on the fact that the overall source of authority for the control of the students is the state. I am more inclined to agree with the latter view for the reason that during a school camp, a school has a duty of care towards its students that is exercised vicariously by its staff on behalf of the school as delegates of state authority. In addition, the English Courts have
indicated that a parent who sues a school for damages arising from that school’s breach of statutory duty, has locus standi to sue for the school’s breach of a duty to the state, rather than for the breach of a duty owed to themselves (Crook, 1989) I think this is difficult to reconcile with the private contractual model upon which in loco parentis is ultimately based. The reason for my view is that any residual authority exercised by a teacher over a student in loco parentis in this context would have to be based on an agreement between the teacher, in his or her capacity as an individual not a representative of the school, and the parents of the student concerned. This does not seem to be a realistic scenario for any activity being co-ordinated under the auspices of a state school, whether it is held during or outside of school hours. Conclusion In conclusion, it would appear that in loco parentis is legally obsolete in its application to our state school system, the primary reasons being: A school’s authority over its students is clearly delegated from Parliament via statute, rather than children’s parents; The doctrine is not compatible with the developing constitutional rights of young people, as it assumes a bilateral exchange of legal authority between parent and school, rather than a trilateral exchange involving students also.
The fact that the doctrine still continues to be invoked appears to be due to social factors that perpetuate its psychological importance rather than its legal worth. References Archard, D. (1993). Do parents own their children? International Journal of Children’s Rights, 1 (3-4), 293-301 Crook, H. (1989). In Loco Parentis: Time for reappraisal? Family Law, November, 447-449. Ludbrook, R. (1990). A New Zealand guide to children’s rights. p 59. Wellington: Inprint New Zealand. Rishworth, P. (2001). The lawful powers of schools – territorial and substantive limits. In Hannan, Rishworth & Walsh (Eds.) New Zealand Law Society Seminar: Recent Developments in School Law, October 2001 (pp 23-46), New Zealand Law Society. Walsh, P. (2001). A pot pouri of legal issues in schools. New Zealand Law Society Seminar: Recent Developments in School Law, October 2001 (pp 215-228), New Zealand Law Society. Cases re Agar Ellis. Agar-Ellis v Lascelles (1883) 24 Ch 317. Mansell v. Griffin (1908) 1 KB 160. R v Newport (Salop) Justices ex parte Wright (1929) 2 KB 416. Maddever v. Umawera District School (1993) 2 NZLR 478. Tavita v. Minister of Immigration (1994) NZFLR 97. Gillick v. West Norfolk and Wisbech Area Health Authority and Another (1986) 1 FLR 224.
However, the National Education Guidelines, National Administration Guidelines and School Charter requirements (derived from sections 60A and 61 of the Education Act) and numerous Ministry of Education circulars do provide teachers with some ad hoc guidance on this issue.
[1]
[2] [3]
Section 139A Education Act 1989
This can also be interpreted to cover private schools that administer the national curriculum and receive financial assistance from the government, although education lawyers debate this point.