Let children behave like children

It’s been a while since I’ve had a go at insurance companies, but sometimes they make it so easy it’s impossible not to comply. Their adverts might try to make you think they are there in your hour of need, indeed the prime minister thinks they are, but don’t be fooled by the smiling nodding dog, insurers will do their best not to pay up when you need it most.

A teenage girl who was hit by a car, suffering traumatic brain damage from which she hasn’t completely recovered, is being blamed for the accident by insurance company Churchill.  Hard to believe, but the insurer is claiming that by walking down a country lane in the dark without high-visibility clothing she is culpable for her own misfortune.

Bethany Probert, now 16 but 13 at the time of the accident, was walking home from her riding school along a narrow road with no pavement when she was hit by a driver who had moved aside to make way for oncoming vehicles but who hadn’t seen her.  Churchill maintains that as a rider she should have known about the need to be visible at night. 

The High Court cleared her of any contributory negligence and found the insurer fully liable, meaning it would have to pay out around £125,000 a year for 24-hour care plus a lump sum not yet set.  If the appeal is successful this award is likely to be cut.  With a likely total value of between £3 and £5 million it is easy to see the insurer’s motivation.

But honestly, where do you start?  Anyone who has a 13 year old, knows one or has even just met one, will know they are still a child.  A child that is growing up but a child nonetheless, and one that shouldn’t be expected to consider the same level of precautions as an adult.  That’s why they still live at home with their parents and why we don’t allow them to have sexual relationships or get married.

At about 13, I did a similar thing.  I fell out with another girl at the farm where I went riding and decided to walk home, which must have been five miles away, down a country lane, not in the dark but without telling anyone.  A neighbour passed me and gave me a lift back to their house and all panic ensued when my parent’s couldn’t find me.  Fortunately for me it all ended well, but it’s the kind of thing tweenagers do.

So I can imagine it seemed quite reasonable to Bethany to walk home along a road she knew well that was regularly used by cyclists, pedestrians, joggers and dog walkers.  She certainly had every right to.  And it’s not a legal requirement, even if it’s a desirable one, to wear a flashing light on your head or turn off your music as you walk along the road.  In any case, the car was going too fast and I’m fairly sure it’s the responsibility of drivers to avoid pedestrians and not the other way around.

While I have, quite deliberately, positioned this story as just the latest in a long line of amoral actions by insurance companies (see Family of cancer victim refused life insurance payout because he didn’t disclose pins and needles, or the insurers’ battle over mesothelioma claims), it also illustrates our somewhat schizophrenic attitude towards children.

The judge in the case said:

‘An ordinary 13-year-old should not be expected to consider taking the same level of precautions as an adult.  It would be asking too much of her to say that she should not have started to walk home at all or should not have started to walk home without borrowing a high-visibility jacket, reflective markings or torch from the stables.  Her decision to walk home was ill informed but not culpable.  It would be asking too much of her to say she should not have set off’.

Churchill probably isn’t the only one who would disagree.  At 10, we have one of the lowest minimum ages of criminal responsibility in the world, so much so, the United Nations Committee on the Rights of the Child has been warning since 1995 that the threshold (set in 1963) is incompatible with our obligations under the UN convention on children’s rights. 

So far, successive governments have, if anything, instead toughened their approach.  And yet this expectation we have of our children to exercise the same levels of judgement and responsibility as an adult when it comes to criminal liability doesn’t extend into other spheres. 

In 2011, 2,000 primary school-age children were arrested, but you have to be 13 to get a paper round, 16 to buy a lottery ticket and 17 to drive a car.  To be expected perhaps when, on the one hand, you have a government wanting to protect children from commercialisation and on the other wanting formal, structured education to start at three.

The test case being brought by Churchill will decide the extent to which children can be held responsible for their own injuries in road accidents.  According to Bethany’s solicitors:

‘This is the first case on the question of an accident victim’s culpability for walking on the road at night for more than 20 years and the first case of a child’s culpability’. 

I hope, for both Bethany’s sake and our children more generally, the judges find for childhood.