Going loco
When you’re not there, who acts as your child’s parent?
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In loco parentis may sound like crazy parents, but it’s a term both parents and educators should know and understand. 

The concept of in loco parentis has existed since the times of ancient Babylon and Rome and is most often used in the educational context, to describe the role of care that a teacher takes in case of something happening to the child.

“Loco” means “place” in Latin and “parentis” means “parent”. In loco parentis literally means “in the place of a parent” and recognises the rights and responsibilities of an individual or an institution to care for a minor.

Educators have the rights and responsibilities of in loco parentis under South African law. Indeed in a country where the physical, emotional and sexual abuse of our children is an ongoing and wide-spread problem in loco parentis is increasingly important.

In loco parentis provides anybody who is not the parent of the child and has no legal or blood ties to a child with a legal framework on their duties to the child.

The in loco parentis role

Section 28 of the South African Constitution’s Bill of Rights defines a child as being under the age of 18, and specifies that a child’s best interests are of paramount importance in every matter concerning the child.

For educators their duties extend to ensuring the educational and general welfare of learners that are in their care. This includes making sure their physical and mental health and safety is protected at all times.

If an educator does not adequately perform their duties under in loco parentis, the parent would have to prove either negligence or an intention to wilfully harm the child.

Negligence suggests that the educator did not intend to harm the child but may have not have taken the same amount of care as a good parent. The test that is used is whether another “reasonable person” would have done the same in the same circumstances. If not, the educator can be found to be negligent, leading to further legal steps and even dismissal by the Department of Education.

Intent to harm

Educators who intentionally harm a child whilst in a position of in loco parentis can be dismissed, according to  Section 17 of the Employment of Educators Act (76 of 1998), which lists a number of things under the heading of serious misconduct.

  • Theft or corruption (for example exam paper fraud).
  • Committing an act of sexual assault on a learner, student or other employee.
  • Having a sexual relationship with a learner of the school where he or she is employed.
  • Seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee.
  • Illegal possession of an intoxicating, illegal or stupefying substance.

It’s also an offence to get a child to do any of these things. If it is alleged that an educator committed  serious misconduct,  the  school must institute disciplinary proceedings.

The South African Council for Educators has a Code of Professional Ethics, which outlines in detail the conduct of an educator when interacting and working with learners. Educators are expected to know and understand all the laws which govern their field of work and cannot use ignorance of the relevant laws as a defence.

Living the vida loco

A second use of in loco parentis is less common but becoming more prominent with time as the traditional family unit evolves. It involves adults who have acted or considered themselves as the parent of a child even though there is no blood or legal tie.

An example would be a woman who has lived with a partner who is not the father or mother of her child for a number of years. When the relationship finishes the partner may still want to be considered as a mother or father to the child even though he or she never adopted the child nor is biologically related. Having raised the child as a parent for a number of years the partner does not necessarily want to terminate the relationship with the child but just with the mother. Numerous cases are using in loco parentis as a reason to have visitation rights with these children.

This article is edited from one in a series provided by the Centre for Applied Legal Studies, Wits University. For further information contact Phillipa Tucker.

Do you think it is fair that teachers are expected to understand in loco parentis and act accordingly? How could this concept help or harm children?

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