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Should Custodians Be Held Legally Accountable for Negligence?
Child injuries and deaths trigger debates on whether their custodians should succumb to criminal liability
 NO. 13 MARCH 30, 2017

(LI SHIGONG)

Two children fell from the fourth floor in a shopping mall and died in late February in the northern city of Tianjin. One of them was 5 years old and the other was 2; they were sister and brother. At the time of the incident, their father was holding one in each arm beside a glass fence. Suddenly, one child fell, and as the father tried to catch him, the other child also slipped from his grasp.

This accident has brought an old topic back into the limelight. What kind of accountability should custodians assume for negligence-caused child injuries and deaths? In March, 13 members of the National Committee of the Chinese People's Political Consultative Conference, China's top political advisory body, submitted a proposal suggesting that custodians should be held criminally accountable for injuries or deaths to children caused by their negligence.

In China, these custodians are seldom required to take legal liability. Mostly, it's out of moral and emotional considerations: Although their mistakes have led to injuries or harm of their children, they themselves are also victims, who may have to pay a huge price for their negligence. Some, however, believe it's necessary to hold them legally accountable in order to encourage parents to be more careful about their children's safety.

Meanwhile, others believe that although custodians should bear responsibility for such incidents, whether it should be criminal liability or not still needs further discussion.

Criminal liability should be imposed

Shi Fengchu (Legal Daily): Actually, parents are also victims when their children are severely hurt or even killed due to their negligence. For the rest of their life, they'll live with remorse. However, in modern society a child's legal personality is independent of their parents. Children are not pets or personal property which parents can freely dispose of. They are independent living creatures. Moral denouncement and grief will not excuse them from legal liabilities. Parental nurturing, custody and protection are not only natural behaviors based on blood bonds, but are also unavoidable legal obligations. In my opinion, when the time is ripe, it's necessary to hold careless parents accountable for negligence of duty, and even criminalize them.

Many Western countries pay more attention to parental responsibility in child custody. If their negligence of duty has led to accidents occurring to their children, parents may be deprived of the custodial rights in less serious cases and criminalized in serious cases. However, in China, parents will rarely be held legally accountable if their children are hurt or killed due to their negligence.

It's necessary to stress the custodial responsibility of parents, but as such cases are about whole families, they tend to be quite complex. Probably, there can be some pilot practices. In terms of less severe cases, giving the parents a warning, requiring them to learn custodial knowledge or temporarily stripping them of their custodial rights is enough, but parents should be held criminally responsible if their children are seriously hurt or even killed due to their negligence.

Wang Zhenyan (opinion.southcn.com): It is unreasonable that parents are not held legally liable just because they are the parents of the victims. More importantly, custodial negligence has already become a big "killer." From the perspective of child protection, it's high time to criminalize custodial negligence that leads to serious injuries and even deaths.

The fundamental reason for such negligence is the lack of a sense of responsibility on the part of certain parents. Some parents are too careless to notice danger approaching their children, some believe they can always escape such incidents by chance and some may have done something wrong. All these have led to grave results.

Certain parents have not paid sufficient attention to child safety, and the lack of legal punishment is making the situation even more unfavorable to vulnerable young children. Imposing criminal liability on such parents will deter them from being so casual about child safety.

In some extreme cases, some couples may vent anger at their children, causing harm or even deaths. The adults tend to disguise such cases as "negligence" and they can be exempted from being thrown behind bars. Therefore, in view of loopholes in our current legal system, it is necessary to criminalize custodial negligence for the sake of child safety.

Entire society should take action

Liang Guben (Beijing Morning Post): To criminalize parents who accidentally cause injuries or deaths to their children due to negligence is not the best solution in any case. The relationship between parents and their children is not simply at the legal level; first of all it is a blood connection.

If their relationship is simplified to a legal responsibility, and parents are punished even for small accidental injuries, it's liable to estrange parents and children by regarding their connection as a legal relationship. Meanwhile, whether this practice can effectively diminish accidental injuries is unknown. It's great to see a rising sense of minor protection, but the family bond should not be neglected.

Indeed, children are prone to accidental injuries. For example, there are many cases involving children being hurt by lifts. The question is: If the parents are held guilty for these accidents, will the problem naturally get solved?

In my view, it's better to enhance the quality and installation standard of lifts than to criminalize parents. In such cases, manufacturers, designers and installers should be asked to take a bigger share of the responsibility than parents. To simply pin the responsibility on parents, while those who should really be held accountable are at large, will not help to fundamentally solve the problem.

In some cases, the tragedies are really a result of parental mistakes, but still, I don't think parents should be criminalized. No parents would love to see their children hurt. Post-accident punishment just won't help. Comparatively, prevention measures are more important and helpful.

I thus oppose parental criminalization for accidental injuries to children. While the result of doing so is unforeseeable, it may well damage the bond between parents and their children and make parental protection less effective.

Zhu Changjun (www.jyb.cn): Indeed, custodians should be held accountable for accidents that happen to children. However, accountability is not necessarily equal to criminal punishment.

Every year, tens of thousands of children lose their lives to accidents, and many are children left behind in rural areas by their migrant worker parents. There are complex reasons behind these injuries or deaths. Many of them occur in traffic accidents, or at construction sites or entertainment venues and may not be directly linked to custodial negligence.

The strongest safety nets for minors are based on children-friendly facility designs and the entire society caring for them. When special toilets for children are still absent in many places, it's unfair to blame everything on their custodians.

Sun Hongyan (Beijing Morning Post): For thousands of years, the Chinese believed that, whatever happened to a child, it was a matter for the family—it had nothing to do with the law or the government. In some extreme cases, arguing in favor of "spare the rod, spoil the child," some parents even beat their children in order to correct their behavior. Sometimes, children were hurt and even died from such injuries. Such accidents used to be seen as the private affairs of a family, and the government or the law did not interfere.

Today, this traditional concept is changing. Children are no longer seen as attachments to their parents, and their rights are protected by law. China's society has begun to realize that children are not only their parents' offspring, but are also independent persons, so their safety must be covered by the law.

Actually, China has passed a series of laws for the purpose of minor protection, and the Criminal Law also contributes to minor protection. However, these laws cover little about parental negligence of custody.

Debate remains heated on whether irresponsible parents should be criminalized. However, I believe one thing is certain: Public facilities should be made safer for children. For example, children should be provided with special lifts and toilets to ensure their safety.

Copyedited by Dominic James Madar 

Comments to yanwei@bjreview.com 

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