Is it legal to throw drunk 15-year-olds out of a party you are hosting? Do you have a 'duty of care' - a legal responsibility to look after them?

One of the questions I get asked the most by parents is around 'duty of care', usually in regard to holding a teenage party or gathering. The questions range from "Am I responsible if a teen gets drunk at a party at my home, even if I do my best to prevent alcohol from getting into the event?" through to "What if a drunk teen turns up at a party I am hosting and I refuse to let them in, am I responsible if something happens to them outside my home?". I have had so many of these type of queries over the years but have always found it extremely difficult to try to find concrete answers for those parents struggling to work out where they actually stand in this very grey area. Based on the information that is available, I have usually said that host parents do, at least to some degree, have a legal duty of care to make sure that everyone at the party is safe. But does the law actually say that?

If you do a quick search of the web, 'duty of care' is usually defined in the following way - "the responsibility or the legal obligation of a person or organization to avoid acts or omissions (which can be reasonably foreseen) to be likely to cause harm to others". 

At the end of last year I received an email from a father regarding a party his daughter had recently attended. Here is an edited version of his message:

"Last Friday night was my Year 10 daughter's social. An 'after party' (not an official school function) was held at a family home later that night. The host parents sent a comprehensive email detailing the event, explaining that there would be security guards and zero tolerance for alcohol, or any other transgressions and misbehaviour. 

When I arrived at midnight to pick up my daughter, I noticed a large number of (mostly male) children milling outside the property. There was a lack of adults. I just thought this was spillage from when the party was ending. I was a little surprised that they were outside, but I took no real notice at the time. I picked my daughter and her date up, and was horrified when they told me that – as per the email from the parents – there was indeed a strictly enforced zero tolerance policy with respect to alcohol and the like. However, what this meant in practice, was that kids who broke the rule were simply evicted from the party. Quite a large number were evicted – some who were breaking the rules, and some just by association. She said the evictions by the security guards were firm and non-negotiable.

So the result was a situation where minors were evicted from a party. I guess that removed any problem from the house. It however (in my view) completely neglects, and in fact violates any duty of care. The evictees were removed and the hosts were no longer responsible for them (or so they thought). There was no concern for their ongoing welfare. This party was in a dark suburb – away from public transport. The evictees were effectively left to fend for themselves. I imagined my daughter – intoxicated being put out into the street alone. Anything could have happened.

Have you encountered this sort of situation before? Is there a duty of care which has been violated? If I were the host parent, then, I would also enforce a zero tolerance policy, however, offenders would be under my care until their safe departure could be ensured (i.e., I would contact their parents/guardians immediately and ask for them to be picked up. Failing that, maybe even the authorities. I certainly wouldn’t just put them out on the street).

I had a conversation at dinner last night about this with a group of friends. One argued that once the offending children had been evicted, the host parents had no further legal responsibility (is this correct?), and so were acting in their own interest, rather than in the interest of making sure the children were safe. Is this correct? Is it legal to evict a minor – especially one who is intoxicated and potentially very much at risk? I extended the argument to the hypothetical – what if the children were not 16, but 12 or 10 or even 6…?"

After receiving this message I set about trying to find someone who could give me some definitive answers! No police service in the country was able to assist me, with every contact I had usually referring me to the fact that it is illegal to supply alcohol to minors and existing secondary supply laws. All of them suggested I speak to a lawyer. For the next few months I bounced from pillar to post trying to find one who firstly, knew anything at all about this area and then, secondly, was willing to put pen to paper to help explain the situation to parents ... There are bits of information out there, for example, Andrew Scolefield from SA's Encounter Youth has written a great article on parent's duty of care around a party being held at their home without their knowledge, e.g., they are away for the weekend. This type of event is typically referred to as a 'free' and Andrew examines the legal issues for parents in this area ... but still practically nothing about a party host's duty of care ...

Finally, I made contact with Jane Sanders, Principal Solicitor from The Shopfront Youth Legal Centre in Sydney. She was extremely helpful right from the first phone call but acknowledged that it was a grey area and there was no simple answer. When I sent her through the father's message and asked her to give some kind of useful response, after quite a few emails and messages she sent me the following:

"If you are hosting a party, you have a "duty of care" to your guests. This means taking reasonable care to ensure their safety, both at the party and after they leave. What is "reasonable care" depends on a range of factors such as the age of your guests and whether they have any disabilities that might affect their ability to make choices about their behaviour.

In most cases you would not be legally responsible if a guest is harmed or injured after they leave the party. This may be different if they are very young or vulnerable, particularly if you have supplied alcohol or have turned a blind eye to excessive alcohol or other drug consumption while under your roof.

Apart from the fact that it's generally illegal to supply alcohol to under-18s (unless you are their parent or have a parent's approval), there is no special law for under-18s. While it's always a good idea to try to make arrangements to get young people home safely, if a teenager decides to leave the party of their own accord (or is refused entry because they are already intoxicated) you would not usually be legally responsible for getting them home. This would be different if the children were primary school age.

You may also have a duty of care towards other people who might be affected by your guests' actions. For example, your guests might damage neighbours' property, or get drunk and have an accident while driving home.  However, under Australian law, hosts would generally not be legally responsible for the actions of guests who get intoxicated of their own free will."

So what does all this mean? I think most parents would believe that if you drop their child off at a party or gathering on a Saturday night the host parents would have a duty of care to ensure your child is kept as safe as possible. From what Jane has said, that does appear to be the case, the host parents must take 'reasonable care' to ensure their safety, but what that actually means is very much open to interpretation!

Did the parents hosting the 'after party' have a legal responsibility to look after the young people who had entered the event but had then broken the clearly laid out rules around alcohol? Jane doesn't address that question specifically (and I don't blame her - this is a legal minefield!) but it sounds like they didn't ... I think there's a whole other discussion to be had about whether it was 'morally' right to push a whole pile of drunken 16-year-olds out onto the street but from a legal perspective it would seem that if they get intoxicated of their own free will, the hosts are not responsible for making sure they get home safely. If something had happened to one of those teens there is most probably no law that the host parents could have been charged with. That said, they could possibly find themselves being sued if the parents of the drunken teens wished to pursue it and had the will and resources to do it ...

I'm sure this will generate lots of discussion and even more questions ... Teenage parties are extremely important events for young people to attend but they don't make it easy for their parents. In the age of the 'pre-party', with more and more teens turning up to homes already preloaded on alcohol, trying to provide 'reasonable care' to ensure all those invited are as safe as possible is becoming increasingly difficult!