Written By Ataguba S. Aboje, Esq

The management of Chrisland Schools, Lagos, has admitted that aside from the 10-year-old female pupil seen in a leaked viral sex video, four other pupils were allegedly involved in the sexual act that occurred during a foreign trip to Dubai, which led to the closure of the schools by Lagos State government.

The statement signed by a member of the School’s Advisory Board, Akin Fadeyi disclosed that 76 students represented the school at the games and that only five including the 10-year-old girl were discovered to have allegedly disregarded the school code of conduct during the trip.

The statement further revealed that the girls were lodged on the 11th floor, while the guys were on the 4th floor to protect and respect their moral boundaries.

The press statement of Chrisland Schools is at its best a tepid attempt at victim blaming and sidestepping their responsibility for this horrifying event that happened on their watch. I would like to see the school held accountable for this but I understand that some might disagree with me and point the finger at the parents of the children. The leaked sex video coupled with several inappropriate social media posts are sufficient proof of the parents’ culpability. The argument for or against this position cannot be dismissed. It has its merits but this matter is as complex as it gets. As a parent myself, I have felt all waves of emotions and indignation. I can only imagine how utterly distraught these parents will be. No child deserves to be put in such a dangerous and humiliating situation given their vulnerability and no parent should live to watch his child participate publicly in such an inappropriate activity before the age of consent.

The age of consent is the legal age at which an individual is considered mature enough to consent to sex. In this case I think it is without debate that the children involved are under the age of consent and, given their vulnerable status, in this article I have refrained from using any personally identifiable information about the children being disseminated on various social media platforms. The fact that it is publicly available is no justification to perpetuate the breach of their privacy fuelled by the mindless social media craze to post and share anything for likes and retweets.

Children as defined by Child’s Right Act (2003) is any person under the age of 18 and childhood is arguably the most vulnerable period of human life. Children are highly dependent on others to satisfy their basic needs, and this makes them particularly vulnerable. Children by reason of their vulnerable status must be under the care of a parent or guardian or person in loco parentis. For over a hundred years that duty has been defined by reference to the principle in loco parentis (being in the place or position of the parent). The doctrine of in loco parentis is derived from the English common law and this comes in play every time the parent of a child had him or her over to another. A ready example is the innocuous exchange that happens usually every morning in a school premises when a parent hands over his or her child to school by dropping him or her off in the school premises. The doctrine of in loco parentis acts to put the teachers or school in the place or position of a parent during school hours or when the child in the custody of the school whether within the school premises or not. The doctrine terminates when the school handover the child to the parent or person authorised or any mode agreed to by the parents at close of school. The operation of this doctrine show that a child must always be with one who stands in the place or position of a parent with a parent’s rights, duties and responsibilities. The law does not permit a vacuum to exist with regards to parental responsibility. Someone is always responsible for the child.

In loco parentis operates regardless of time or date or place. So long as pupils/students have been properly involved and invited to take part in any activity in pursuit of education arranged by a school/college, no matter how broadly based that activity may be, and continues until they are returned to the care of their parents.

If this is the case, it is important to dispassionately review facts and identify if any Chrisland Schools owes a duty of care to its pupils and whether those duties were breached in this circumstance.

This article will demonstrate how in loco parentis goes to the core of the relationship between schools/teachers and pupils and may very well define the culpability or otherwise of Chrisland Schools for this avoidable imbroglio. It is submitted that Chrisland Schools is under a duty of care in respect of its pupils’ welfare. Those who employ teachers can be directly liable for negligence, as well as being vicariously liable for their teachers. The duty of care of schools/teachers to their pupils arises from their position in loco parentis, and that principle is commonly used to guide teachers as to the nature and extent of the duty.

In loco parentis refers to the transfer of authority from parent to teacher for the welfare of the child. See the English case of Gower v London Borough of Bromley [1999] ELR 356. Where the court said its application and relevance goes beyond the teaching of the child and includes

‘a duty to take positive steps to protect their well-being’ (Auld LJ)

The locus classicus of the doctrine of in loco parentis, lie in the English case of Williams v Eady (1893) 10 TLR 41 where Cave J held that

‘The schoolmaster was bound to take such care of his boys as a careful father would take of his boys, and there could not be a better definition of the duty of a schoolmaster’. He added that the schoolmaster ‘was bound to take notice of the ordinary nature of young boys, their tendency to do mischievous acts, and their propensity to meddle with anything that came in their way’.

That statement, approved by the appeal court, remains as the leading definition of a teacher’s duty. Subsequent cases have supported the statement of Cave J in varying degrees. There is recognition that a teacher is better placed, through professional training and experience, to manage large numbers of children in activities, and the use of in loco parentis has been stretched to accommodate such circumstances.

In the Gower v London Borough of Bromley case, Auld LJ stated that the law had established that

‘The teacher and teachers have a duty to take such care of pupils in their charge as a careful parent would have in like circumstances, including a duty to take positive steps to protect their wellbeing’.

The English Court of Appeal in Chittock v Woodbridge School [2002] EWCA Civ 915, [2002] 32 LS Gaz R 33 considered the duty of care of a school to a 17-year-old pupil on a skiing trip. Chittock was paralysed as a result of failing to judge a manoeuvre on the slopes; it was argued that, because of his previous disobedience, he should have had his ski pass removed or been subject to greater supervision. The school felt that a reprimand was more appropriate. In the Court of Appeal, overturning the lower court’s decision, it was held that the teachers on the skiing trip owed a duty to [Chittock] to show the same duty of care in relation to him as would have been exercised by a reasonably careful parent.

Summing up a teacher’s the duty of care ‘Teachers and other staff in charge of pupils have a common law duty to act as any reasonable parent would do in the same circumstances’ ‘summing up a teacher’s duty of care (although each case is always judged on its specific circumstances)’.

From the various judicial dicta when applied against the Chrisland Schools case it is easy to see that Chrisland Schools had a duty of care to maintain appropriate safeguards to prevent its pupils on the Dubai trip from having unlawful sexual intercourse. It is a nonstarter for Chrisland Schools to say it did its best by separating the boys from the girls and putting them on separate floors of the building. Given the fact that the girls were on the 11th floor and the boys on the 4th floor of the building it smacks of utter dereliction of duty for the unlawful meeting after imposed lights out without it being detected.

It is astounding that Chrisland Schools anticipated the likelihood of immoral behaviour and separated the boys from the girls “…to draw clear lines that respect moral boundaries” but it failed to put in place adequate and proper safeguards to curb it. Look at their press statement, “Within these 71, we had our girls on the 11th floor and boys on the 4th floor to draw clear lines that respect moral boundaries.

One would ask where were the teachers who were supposed to be acting in loco parentis? For those who are wont to blame the parents for being slack, this failure of duty did not happen while the children were in their parents’ custody. It happened when Chrisland Schools had full custody. It is expected that if the pupils are unable to carry out such nefarious act while in their parents’ custody it should not be any easier when Chrisland Schools was acting in loco parentis period! To hold otherwise is to grant a licence to schools to allows our children do what we would not approve when they have custody. That would be a dangerous precedent.

The Chrisland Schools pupils on the Dubai trip is stated to be 71 what was the ratio of teachers to students? Chrisland Schools acting in loco parentis owed a duty of care to its pupils and their parents to ensure, as the parent themselves would taking all reasonable care and diligence to protect their pupils from harm and from engaging in unlawful activity. A breach of the duty of care is an actionable tort of negligence.

Furthermore, a community reading of Section 31 (3) (a) of the Child’s Rights Act 2003 shows the real age of consent in Nigeria is 18 years old. The age of consent is the minimum age at which an individual is considered legally old enough to consent to participation in sexual activity. Individuals younger than 18 years in Nigeria are not legally able to consent to sexual activity, and such activity may result in prosecution for statutory rape or the equivalent local law. Some will dispute this age as not all the states have adopted the Child’s Right Act or they have local laws that may stipulate a different age but this argument is otiose in the face the constitutional doctrine of “covering the field”. By virtue of Section 4(5) of the Constitution Federal Republic of Nigeria 1999 (as amended), if any Law enacted by the

House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void.” Several judicial dicta like the case of A.G Ogun State v. A.G Federation (1982) 1-2 S.C. (REPRINT) 7 has upheld the doctrine.

This being the case the Chrisland Schools pupils involved in the horrid affair were legally incapable of giving consent to the prohibited sexual activity they engaged in and when a prohibited activity is done it crystallises as a criminal offence and can they be prosecuted? The minimum age of criminal responsibility under section 30 of the Criminal Code which is in pari materia with section 50 of the Penal Code provides “a person under the age of 7 is not criminally responsible for any act or omission”. Going by the bare letter of the law it may seem that these pupils bear the criminal responsibility for the prohibited act as the actus reus that is the action or conduct which is a constituent element of the crime is complete but proving the mens rea, the intention or knowledge of wrongdoing that constitutes part of a crime is likely a convoluted kettle of fish. To be clear I do not suggest prosecuting the pupils that would be making a an already bad situation worse for the children and it would in my view be contrary to the primary goals of the juvenile justice system which is rehabilitate young offenders but this show the extent of Chrisland Schools breach of the duty of care. It has by its failure exposed its pupils to potential criminal prosecution and itself to potential civil liability for negligence and criminal liability under the Child’s Rights Act and a myriad of other criminal legislation but how this proceeds remains to be seen.

In the meantime Chrisland Schools owe the parents of the pupils involved in this sordid event an unreserved apology in mitigation for whatever is coming.

WRITTEN BY ATAGUBA S. ABOJE, ESQ, NP FRN, MCIArb, FICAD, FBDFM, FCIGCD
HE IS A LEGAL PRACTITIONER & THE PRINCIPAL OF THE
LAW FIRM A&G SOLOMON IN ABUJA
08113876773
[email protected]