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The essay addresses the issue of custodian or child services liability for damages to children in foster care and to their parents. Since there are no specific rules, the problem must be dealt with the general ones, but taking into consideration that such a question arises into the family law context. The author proposes to look at contractual liability rather than tort law on the grounds that parties involved in the foster care are linked by a specific legal relation. Children and their parents, in other words, have a legitimate expectation that custodians, child services, and to some extent judicial authority too, will be able to prevent them from suffering harm. Into the private law frame of reference this is a duty of protection, and its breach is precisely governed by the contractual liability rules. However, due to the fact that child services, judicial authority, and custodians are linked in carrying out their duties, the options about the allocation between these parties of liability for damages to children and their parents are also explored. Finally, the writing turns to the question of possible parents’ contributory negligence due to a breach of their educational responsibility under article 1227 of the Civil Code.
keywordsfoster care, duties of protection, liability, custodians, child services, judicial authority, right of recourse, parental responsibility.Biografia dell'autoreUniversità Cattolica del Sacro Cuore, sede di Piacenza-Cremona – francesco.zecchin@unicatt.it |
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