Taking the initiative to enroll your child in a childcare centre (CPE) or in a family daycare can be a difficult decision for both parents and the child. It is sometimes difficult to trust another person to take care of or educate their children, even if only temporarily.
So what happens when your child comes home from CPE with bruises on their body or sunburn? Who will be held responsible for their injuries? Will it be possible to obtain compensation on behalf of your child?
Mr. Lambert answers these questions by explaining the law and the law applicable to this type of situation.
The responsibility of the CPE or daycare
Generally, the parents or guardians of a child are the holders of parental authority over the child. Article 601 of the Civil Code, however, allows them to delegate to others certain attributes of parental authority, such as custody, supervision or education.
For example, this is what happens when parents drop their children off at daycare or school. The guardians or educators are then responsible for the safety of the child.
Therefore, any bodily, moral or material injury suffered by your child and resulting from a fault committed by a daycare worker will be subject to compensation. In accordance with the civil liability regime, it will be necessary to demonstrate the damage or damages suffered by your child, the fault of the person in charge, as well as the link between these two elements.
The fault
The Act and the Regulation respecting educational childcare services impose a safety obligation on those in charge of a CPE or a daycare centre. By this obligation, they are not asked to prevent all types of accidents, but rather to act diligently in order to avoid foreseeable accidents.
To determine whether or not there was a fault, the judges will decide by comparing the conduct of the officer with that of a reasonable person placed in the same circumstances.
For example, in one case, an accident occurred while an educator was changing a child’s diaper. The latter turned around for a few moments; long enough for the baby to move on the changing table and fall from it. He suffered a minor head trauma and the Court found fault on the part of the attendant. According to the Court, since the attendant is a childcare specialist, she must therefore have known that babies are likely to make sudden and foreseeable movements and that they require constant supervision. The officer therefore breached her duty of supervision and safety by allowing herself to be temporarily distracted.
In another example of negligence, an attendant was found responsible for the bodily injury suffered by an 8-month-old child because she failed to close a barrier to stairs. Faced with this situation, the Tribunal determined that this was a foreseeable accident and that more monitoring could have prevented the unfortunate incident.
Sunburn or burn
In cases where you pick up your child and notice sunburn on their arms or a burn on their hands, it’s normal to worry.
Faced with such a situation, the educator or attendant must explain to you what happened.
One of the first things to do when you get home is to document the extent of the harm, for example, by taking pictures and asking your child to explain what happened. It is also recommended to contact other parents of children who attend the same centre. Indeed, if it is a recurring situation, it will be relevant to file a complaint with the Director of Youth Protection (DYP).
For example, in one case, the management of a CPE had its educational childcare licence suspended because attendants failed to put sunscreen on children when they went outside. In addition, the evidence showed that the establishment had sunscreen, but that it had expired.
Age and experience
Of course, the qualities and expectations will vary considerably depending on the age or experience of the babysitter. For example, judges will tend to be less severe when the custodian in charge acts for free or for a small fee.
In a Superior Court case, a little girl playing matches accidentally set fire to a building. She was then in the care of her grandmother. She was doing the dishes and she thought the girl was sleeping at the time of the accident. In its judgment, the Court concluded that these facts were not sufficient to engage the grandmother’s liability, since a reasonable person in the same circumstances and with the same experience could not have foreseen that such an incident would occur.
On the other hand, if the same situation had occurred in a CPE, it would have been much more difficult to absolve oneself of responsibility since the training and experience of the educators will have a strong influence.
The same principle applies when comparing the caregiving qualities of a 14-year-old girl with those of a 40-year-old adult. Expectations of diligence will be higher for the second than for the first.
Examples of negligence
Other examples of misconduct involving negligence in custody recognized by case law include:
- Frostbite;
- Immobilizing or tying a child while sleeping;
- Grant prescription drugs when the child’s state of health is unknown;
- Unclean and unhealthy installation and environment;
- Poor diet;
- Presence of dangerous objects within reach of children;
- Unsafe outdoor games or modules.
Babysitters
Unlike paid educators, babysitters who look after children for free or for a small fee are not covered by article 1460 of the Civil Code, which provides for a presumption of liability. Indeed, to be held liable, the party wishing to bring a claim must demonstrate that the babysitters have failed in their duty to supervise, educate and/or care for the child being babysat, in addition to the elements of civil liability.
It should not be forgotten that each situation is a case in point and that the facts must be analysed as a whole. To maximize your chances of success during your appeal, it is important to properly document your file with photos or testimonials.
If your child has suffered injuries as a result of the negligence of a babysitter or educator in a CPE or daycare, do not hesitate to contact our office.