The Federation Press

Children, Parents and the Courts

Legal Intervention in Family Life

Overview

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?

Table of Contents

Acknowledgments
Author’s Note
About the Author

Introduction

Part I: Disputes About Children’s Upbringing

1. A Landmark Case: Applying the Paramountcy Principle

Background to the Decision
The Outcome: What Happened to Carlos?
The Lessons to be Learned
Notes

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
Notes

3. Child Protection: The Law in Action

A Troubled Family
Severing Family Links
Andrew’s Case
Differing Views of the World
Notes

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)
Putting the Case in Context
Notes

5. Best Interests and Cultural and Racial Identity

A Painful History
Self-determination
Applying the Child Protection Laws to Aboriginal Children
The Law's Recognition of Cultural Differences
The Law's Dilemma
Respecting the Cultural Identity of Aboriginal Children: Some Questions
A Compromise?
Notes

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
Notes

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

Re R and Re W: The Eclipse of Parental Powers?
The Role of the Courts
Some Questions
Notes

8. “Still a Child”

X’s Case
Some Reflections
Overriding Parents’ Wishes
"Gillick Competence" and Autonomy
The Power of the Courts
Notes

9. Parental Powers: Some Limitations

Some Illustrations
Some Reflections
Notes

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
Notes

Bibliography

Index

Of interest...