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Children, Parents and the Courts: Legal Intervention in Family Life

Children, Parents and the Courts: Legal Intervention in Family Life

Author: John Seymour
Publisher: The Federation Press
ISBN: 9781760020712
Published In: October 2016
Format: Paperback
Jurisdiction: Australia ? Disclaimer:
Countri(es) stated herein are used as reference only

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The family can be viewed as a private world, one into which courts should be reluctant to intrude. In our society, recognition of the specialness of the parent/child relationship is well entrenched: “The best person to bring up a child is the natural parent.” Yet legal intervention in this relationship may be justified when children need protection.

The resulting tension is the principal subject of this book. An Australian court dealing with a child must seek the outcome most likely to promote that child’s “best interests”. The book includes case studies illustrating the difficulties magistrates and judges have encountered in applying the best interests test. These cases also prompt questions about the capacity of courts to make effective orders when children are not receiving adequate care: a court order cannot re-make a child’s life. The first part of the book looks at the various issues that may arise in regards to different views on what “best interests” may be. Cultural diversity must also be taken into account. To what extent should Australian law seek to accommodate differing views on child-rearing? This question is particularly relevant to an examination of the impact on Indigenous communities of current child protection policies. Cultural bias can be criticised, but the system should not lose sight of the goals and standards expected of procedures designed to achieve what is best for all children, Indigenous and non-Indigenous.

In addition to considering cases in which parents’ authority is challenged, Part II of the book addresses another issue. When a dispute arises about the medical treatment of a mature child, the child may assert the power to give the necessary consent to, or to decline, the treatment. If the adult world disapproves of the child’s decision a court can override it on the ground that the child is vulnerable and needs protection. Is this a benevolent application of the “best interests” test or unwarranted paternalism?

Introduction

Part I: Disputes about Children’s Upbringing

1. A Landmark Case: Applying the Paramountcy Principle

The story of Carlos

Background to the Decision

The Outcome: What Happened to Carlos?

The Lessons to be Learned

2. Child Protection: The Law

The Paramountcy Principle in Australia

Child Protection Acts

The Problem of Definition: The Current Laws

Adapting the Paramountcy Principle

The United Nations Convention on the Rights of the Child

The Family as the Fundamental Group Unit of Society

Parental Responsibility

Doubts about the Role of the Law

3. Child Protection: The Law in Action

Elizabeth’s Case

A Troubled Family

Severing Family Links

Andrew’s Case

Differing Views of the World

4. Child Protection: Some Dilemmas

The Meaning of “Best Interests”

Preserving the Family Unit

Child Protection Services: The Reality

A Tragic Case (but one of many)

Chloe’s Case

Putting the Case in Context

5. Best Interests and Cultural and Racial Identity

A Painful History

Self-determination

Applying the Child Protection Laws to Aboriginal Children

The Laws Recognition of Cultural Differences

The Laws Dilemma

Respecting the Cultural Identity of Aboriginal Children: Some Questions

A Compromise?

Part II: Disputes about Decision-making

6. Another Landmark Case: A Challenge to Parental Authority

Re-defining Parental Authority

The Decision

Gillick Re-visited

A Revised View of Parenting (and Some Doubts)

Allowing Children to Make Their Own Decisions

7. Questions about Children’s Freedom to Make Their Own Decisions

Re R

Re W

Re R and Re W: The Eclipse of Parental Powers?

The Role of the Courts

Some Questions

8. “Still A Child”

Y’s Case

X’s Case

Heather’s Case

Jules’s Case

Thomas’s Case

Some Reflections

Over-riding Parents’ Wishes

Gillick Competence and Autonomy

The Power of the Courts

9. Parental Powers: Some Limitations

Some Illustrations

A’s Case

Alex’s Case

Inaya’s Case

Sean and Russell’s Case

Baby A’s Case

B’s Case

Some Reflections

10. A Triangle

Intervention in the Parent/Child Relationship

Best Interests

How the Law Works

Disputes about Decision-making Powers

The Role of the Courts

A Final Word

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