Commanding Offices: loco parentis
Why do Commanding Officers not act in loco parentis
towards trainees under the age of 18? What would it mean if they
did?
The law is not clear in providing a single definition
of a "child" or "minor", which depends entirely
upon the purpose of the relevant legislation. The Education Act
1996, for example, and many employment rules, define a child as
someone under compulsory school age. The various offences commonly
known as cruelty to children are in most cases offences in connection
with those under the age of 16. Licensing and gambling legislation
defines a "child" as being under 18.
So far as confirming an individual's suitability
to work with "children and vulnerable persons" is concerned,
the Criminal Justice and Court Services Act 2000 extended the
scope of enquiries (with the Criminal Records Bureau) to cover
those so employed. Part II of the Act defined a child as anyone
under the age of 18, except those in full time employment where
a child was considered to be someone under the age of 16. A "vulnerable
person" was defined as those substantially dependent upon
others—essentially the physically disabled, the sick or
those with severe learning difficulties.
Consequently, the legislation and the need for
CRB checks did not apply to those working with Service personnel
under between the ages of 16 and 18, although it did, for example,
apply to those employed with the cadet forces and Service Children's
Education Schools. These requirements, and associated definitions,
were set out in MoD policy guidelines issued on 19 July 2003.
The Services take their responsibilities towards
their people extremely seriously and are very well aware of the
particular welfare needs of all recruits and trainees. Maturity
and experience however varies considerably between individuals,
and Commanding Officers are directly responsible and accountable
for ensuring that a pragmatic supervisory care regime is in place
for all recruits, trainees and other students, whether aged 16/17
or 18 plus. This pastoral and welfare regime goes well beyond
the delivery of military, technical or specialist training and
/or education. In addition (though this would not generally be
relevant to those under training), restrictions are applied to
the operational deployment of under-18s, in accordance with the
UK position on the UN Convention on the Rights of the Child.
The Services accordingly regard their "duty
of care" responsibilities as arising from the employment
of all individuals (including those under 18), and not arising
from specifically acting "in loco parentis" to those
within the 16-18 age group. A CO does not have the rights and
obligations imposed on a parent or other guardian (such as a local
authority looking after a child in care) in respect of a recruit
who is a minor. Neither, for example, would a school attended
by such a person, or another employer, have such obligations.
However, the age of the recruit, the all-encompassing nature of
initial training, and other factors particular to the recruit
such as his or her maturity and intelligence would all be relevant
to the degree of care required under the duty of care. It is,
however, the case that the care and welfare of those under 18
merit particular attention, and COs are well seized of this need.
The CO will always ensure appropriate involvement of the parents
of a recruit or trainee, taking into account the wishes of the
recruit or trainee.
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