How far you can legally go to stop a ‘trick’ on you this Halloween

Authored by DAS

Children – and let’s face it, parents as well – will enjoy dressing up and eating sweets, but ghoulish behaviour can often turn from a night of fun into a nightmare.

So what can you do if a trickster damages your property and how far can you go in trying to stop them? Are you responsible if a ‘treater’ has an allergic reaction to the sweets you give them?

Saif Ahmed of DAS Law has the answers to these questions (and others) to avoid making this Halloween a legal fright night…

Is trick or treating illegal and are there any age restrictions on how old you have to be to take part?

The very act of “trick or treating” is not considered an illegal act, even though it is considered by many to be an “unwelcome American cultural import” and can sometimes result in incidences such as property damage, nuisance and personal injury.

There is no law to limit the minimum age you need to be to participate in trick or treating or for a child to go out on their own but the NSPCC does express for such individuals and their parents to exercise caution.

If a child damages your property with a ‘trick’, can you recover repair costs from the parents?

Damage to property is potentially a criminal offence as well as a civil matter. Halloween is a busy time for the police and they may receive a high volume of calls, so before contacting them consider whether the matter can be resolved amicably. However, if you are harassed and concerned about your safety then you should contact the police.

Generally speaking, parents are responsible for supervising their children but are not liable for the acts of their children and cannot be directly responsible for damage they may cause to your property. So you would ordinarily have to take civil action against the child.

As there is no minimum age at which a child can be held to be negligent, this would entirely depend on the circumstances and their understanding. A child is thought to possess only the discretion that is common to children and therefore should be held only to the exercise of care that is expected of a child his/her own age and capacity.

Holding a child responsible for their actions may not be a realistic way forward as a child is unlikely to have assets to pursue for damages, so it would be preferable to hold the parents responsible if possible.

Parents are responsible for ensuring their children are supervised in certain circumstances, although this will vary depending on their age i.e. older children are less likely to require supervision as they will have a greater responsibility for their own actions.

The other option to consider would be whether it may be possible to sue the parents for negligence for failing to supervise or, if they did supervise at the time, for failing to control their children.

This, of course, would be dependent on proving the elements of negligence – was there a duty of care? Has that duty of care been breached? Has there been any damage as a result of that breach?

How far are you allowed to go to stop a child from playing ‘tricks’ on you and your property?

A landowner is entitled to the peaceful enjoyment of their land and to protection from any unlawful interference with their use or enjoyment of it. If you are in fear for your safety and/or harassed, then you should contact the police as these are criminal matters.

From a civil point of view, it could be argued that a regular stream of people invading your property whilst ‘trick or treating’ would amount to a legal nuisance.

Normally, you could look at legal action and remedies such as damages and an injunction. If nuisance is proved, a key question would be who could an injunction be taken out against?

Due to the transient nature of the nuisance, it would be difficult to bring a claim against a one-time offender as would be the case with Halloween. However, if someone persistently posed a nuisance, then it would be more likely to succeed in a claim against them for trespass or nuisance.

I would advise against any physical interactions and, as above, if the situation escalates you should report the matter to the police.

Can you physically intervene if an act of vandalism is taking place on your property by a minor?

Any damage to property is potentially a criminal offence and you could threaten to report the perpetrator to the police. You could also seek to take a civil claim for damages to compensate you and put you back in the position you were before the damage.

I would advise against any physical interactions as the situation could escalate. If you assault a child, this could be reported to the police and it may be difficult to justify whether this response was reasonable in the circumstances and you could risk criminal sanctions.

If you give a child sweets for Halloween and they choke or have an allergic reaction, are you responsible?

This would of course depend on the circumstances. Assuming the sweets have not been interfered with, a claimant would have to prove you have been negligent in order to hold you responsible for any injuries.

To establish negligence the court will look at whether the defendant owed the claimant a duty of care, that there has been a breach of that duty, and this has caused the claimant loss. The loss must also be foreseeable.

In practical terms it may be difficult to establish negligence if you simply gave a child a sweet and they choked as this could be down to any number of reasons - for example, the child’s own behaviour contributing to the incident.

The child would be assuming a certain level of risk and therefore, if any claims were brought, you would look to argue either a voluntary assumption of risk and/or contributory negligence as a defence.

However, the circumstances may be different if you gave a baby or toddler sweets as they may be less likely to detect certain dangers so extra care should be taken.

Can under 18s watch horror movies rated 18+?

Films that are classified by the British Board of Film Classification 18+ are only suitable for adults 18 and older. The same applies to any individual watching an 18+ rated film at the cinemas or those who choose to buy or rent copies of a film. The BBFC do not mention any specific rules about underage individuals watching such movies at home. The ratings are advisory on platforms such as DVD’s and streaming services. An underage person cannot actively purchase/rent/watch such a movie at the cinema.

The goods that I have purchased specifically for Halloween are faulty, can I return them?

If you have purchased an item and it turns out to be faulty, not fit for purpose or not as described, the Consumer Rights Act 2015 provides that you are able to reject such goods within the first month of purchase.

If you notice any issues after 30 days since purchase, the onus will be on you to prove the above breaches and for the seller to prove that the issues raised are not an inherent problem or to rebut them.

The remedies available in such instances are a repair, replacement and finally a rejection of goods. After 6 months of purchase, both the onus of proving the fault/issues and proving that these are inherent problems lies with the consumer. The best practical advice would be to act promptly to avoid complication with the seller.

Further information on legal topics can be found on DAS Householdlaw. To find out if you have access to this resource, please consult your policy documentation or contact your insurance broker.