[88] Nonetheless, Justice Osborn ultimately left open the question of whether parental rights should be recognised under the Charter. Common law courts have historically exercised a parens patriae power, that is, “a sovereign right and duty to care for a child and protect him from neglect, abuse and fraud during his minority.”21 Parents have been held to a similar duty “to provide reasonable care, protection, maintenance and education for their children.” If the parents were unable or unwilling to discharge that duty, the common law courts could “act to protect the interests of the child, take custody from the parents and appoint a guardian.”21 Indeed, one of the earliest interventions justified by a best interest standard involved a father who failed to secure appropriate medical care for his children.22. Going against the deeply held values of the children’s biological parents may further disrupt the children’s relationship with their parents by ordering them to defy the values of the family unit. These concerns involve the family as a unit. Notably, Australian family law courts have adopted a relatively consistent legal position in these cases by upholding that vaccination is usually in children’s best interests and rejecting anti-vaccination arguments. However, in doing so, and probably largely due to the fact that the appeal turned on whether the Magistrate had acted ultra vires,[103] Justice Osborn did not undertake a careful weighing of the alternatives, to vaccinate or not to vaccinate, in reaching his decision. POTENTIAL CONFLICT OF INTEREST: The author has indicated she has no potential conflicts of interest to disclose. Although a showing of detriment to the child is relatively easy to make in most of these cases, the courts varied in the standard they applied. Acknowledging these reasons may make the decisions that affect children’s interests more comprehensible. This may result in reasoning that is not transparent and, thus, arguably subjective and not in the child’s best interests. The best interest of the child standard has had its greatest influence in custody cases, initially as a doctrine that allowed courts to recognize the importance of the mothers’ role in the child’s life and more recently as a way to mediate between mothers’ and fathers’ competing claims. [6] In August 2017, owing to breaches by the parents of some of the conditions of the FPOs, Interim Accommodation Orders (‘IAOs’) were made by the Court placing the children in foster care. Incorporating a rights-based approach would require focusing much more systematically on the attitude adopted by the courts in relation to children and providing a clear model that could be implemented.[128]. [54]  The weight to be accorded to the factors has been left to judicial discretion. They start with recognition that notions of family privacy involve not just parent’s rights but identification of the circumstances in which children’s interests may depend on their relationship with their caregivers. Consent by parents to the sterilization of their mentally retarded offspring has a history of abuse which indicates that parents, at least in this limited context, cannot be presumed to have an identity of interest with their children. I then address the nature of the family and the question of whether interests beyond those addressed in the child’s best interest standard are a legitimate part of family decision-making. Although the best interest standard is centuries old, its meaning has never been fixed. [140] The references to the various human rights instruments were not developed any further. [9] The children’s biological mother objected to this variation. Moreover, the brother’s death would certainly have an impact on the parents that might affect their relationship with the donor. Rather, both the Magistrate and Justice Osborn preferred to base their respective decisions to make orders to vaccinate children on the premise that the CYFA allows a wide discretion as to what matters may be taken into account in determining what is in the best interests of the child.[141]. The best interest of the child standard has had its greatest influence in custody cases, initially as a doctrine that allowed courts to recognize the importance of the mothers’ role in the child’s life and more recently as a way to mediate between mothers’ and fathers’ competing claims. Without a source for this consideration, judicial reasoning may not be conducted objectively. Following popular medical opinion, it would provide numerous health benefits for the children,[108] and, at its most extreme, could prove to be lifesaving. In Curran v Bosze, the Illinois Supreme Court refused to approve a bone marrow donation because of the donor children’s best interest.26 The case, however, can also been seen as a classic interpretation of the children’s interests in accordance with an allocation of decision-making power to the primary custodial parent. [106] Rather, it should consist of a relative approach, which is not concerned solely by whether one alternative is better or worse than the other, but instead by how much better or worse outcome each of the two alternatives produces. In many ways, however, the more immediate consequences occurred to the caretakers who would have to see to the girls’ hygienic needs and supervise their behavior. The requested destination could be a 60-mile move or a 6,000-plus-mile move. A CASE STUDY OF THE BEST INTERESTS PRINCIPLE IN CHILD PROTECTION LAW USING ZD V SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES [2017] VSC 806. This is mirrored in the reference to ‘best interests’ in section 263(7) and is no narrower than that provided for in section 10(1). [12] His Honour concluded that the condition was in the best interests of the children. An application of the LDA would require the court to focus on how well each of the two alternatives suited the children’s’ needs. The intrusiveness and discomfort of the blood test would be minimal, but the twins’ mother refused to permit it because she objected to the bone marrow transplant. The “best interest of the child” is the iconic standard courts use to resolve disputes about children. It seems highly unlikely that future cases will separate parents’ interests from the best interests principle. Justice O’Connor’s plurality opinion emphasized the constitutional protection accorded to “the interest of parents in the care, custody, and control of their children.”4 In identifying the problems with the Washington statute, O’Connor underscored its breadth, noting that the statute allowed “any person” to petition “at any time” (italics in original)4 and that the statute applied a best interest standard with no deference whatsoever to the parents’ views. This article will explore the question of the best interest standard in the context of third-party interventions in ongoing parent-child relationships. [136] As such, it is worth considering the implementation of a substantive rights model that would allow the court to recognise and consider the rights of a child when making such physically invasive orders in the child protection context. You will be redirected to aap.org to login or to create your account. Bosze had also fathered 3.5-year-old twins in a different relationship. [126] Jeremy Waldron, ‘Judges as Moral Reasoners’ (2009) 7 International Journal of Constitutional Law 2, 10. A bone marrow donation would be uncomfortable for the donor and pose significant risks because of the general anesthesia necessary for the procedure.26 Moreover, although the medical testimony indicated that Jean Pierre would almost certainly die without the transplant, some testimony indicated that his prospects were poor in any event.26 The court required a clear showing that the transplant would advance the donor child’s interests without consideration of the benefit to the sick child, and no such case could be made. The Child's Best Interests in Custody Cases. [14] Secondly, that the Magistrate mistook the nature and scope of his powers to include conditions under section 263(7) of the CYFA. [136] See Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; B & B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604, 665 [383]; Bryant, above n 135, 196. As one commentator aptly recognized, the ‘law does not have the capacity to supervise the delicately complex interpersonal bonds between parent and child.’”35, The court justified its conclusion that the decision to rely on prayer was in Colin’s best interests because of the nature of the treatments involved. [25] Justice Osborn held that section 263(7) is not restricted by the notion of major long-term issues in the way that other sections of the CYFA are. [134] It follows that a child who is subjected to medical treatment should also have his or her rights considered by the court in the process of making such an order. It has been observed that, as the best interests principle provides no clarifying definition, its application merely reflects the values and attitudes of the decision-maker. [10], The Children’s Court Magistrate found that the CYFA provided for a wide discretion as to what matters may be considered in determining what is in the best interests of the child. In Michael v Gerald,11 for example, Justice Antonin Scalia’s plurality opinion for the Court upheld the constitutionality of the marital presumption and, in doing so, ruled that unmarried biological fathers have no constitutionally protected rights to assert paternity over the wishes of the mother and her husband and the child had no separate, constitutionally protected interest in a relationship with the man she called “Daddy.” The states were thus free to adopt statutes that limited the standing of third parties, including unmarried biological fathers, to assert any relationship to a child. FINANCIAL DISCLOSURE: The author has indicated she has no financial relationships relevant to this article to disclose. [29] Therefore, it is not a necessary implication that the range of conditions which may be imposed in the best interests of the child will necessarily be confined to matters having short-term consequences only. Similarly, “the best interests of the child” is not the legal standard that governs parents' or guardians' exercise of their custody: so long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves.12. Instead, the courts struggle with 2 ideas in deciding whether third parties should be allowed to intervene in existing family relationships. No plagiarism, guaranteed! The above analysis demonstrates that each of the alternatives is not equally suitable in terms of the children’s most immediate predictable developmental needs. Consider an orphaned child who would like to participate in an experimental cancer treatment. The daughter, who had an IQ of 30, had been living at home, showed aggressive tendencies toward men, and required continual supervision to prevent pregnancy. The court might well reach a different result had the custodial parent approved. [74] Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 (21 December 2016) [307]. [126] Owing to the very nature of the best interests principle, they must also engage in ‘moral reasoning about some or all of the issues proposed’. It is rare that one factor by itself will determine custody. T Today, in all Australian jurisdictions, the key principle that informs decision-making in family law and child protection matters is that the best interests of the child are to be the paramount consideration. It also stated that “In all matters of importance relating to the health, welfare and education of the children, Mother shall consult and confer with Father, with a view toward adopting and following a harmonious policy.”26. Such a view is reinforced by rapidly growing academic literature which emphasises the need for judges to take children’s rights seriously. [119] However, the scientific support for such a conclusion is questionable at best.[120]. Early English and American laws were said to treat children largely as their “father’s property.”3 The earliest cases to recognize mothers’ interests did so as an extension of the early English cases that justified intervention where the father had failed to act in the child’s interests, such as cases in which the father was abusive, unfaithful, or failed to support the family.7 Over time, however, the best interest standard became the more general test for custody disputes, curbing the primacy of the father to recognize mothers’ interests.3 Although the test gave courts greater ability to make individualized determinations, most courts apply mechanical rules to interpret children’s interests.8 First, by the beginning of the 20th century, the courts began to identify the best interest of a child of “tender years” with maternal custody.8 Then, as divorce became more common, the courts identified children’s interests with the continued involvement of both parents.9 To be sure, courts retained the ability to depart from these expectations to protect children’s interests, but such departures are the exception rather than the rule.8. ‘Best interests of a child’ is a guiding principle in matters relating to children. Dissertation . This is because a rights-based approach would have required the Magistrate and Justice Osborn to conceptualise the issue much more forcefully in terms of the children’s right to gain access to appropriate health services and the highest attainable standard of health. However, cases in which parents oppose the vaccination of their children have a lengthy history of coming before the Australian Family Court. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration children and therefore require decision[emphasis added] The best interests principle can be seen as the guiding principle of the entire Convention; it is an umbrella provision … To export a reference to this article please select a referencing stye below: If you are the original writer of this dissertation and no longer wish to have your work published on the UKDiss.com website then please: Our academic writing and marking services can help you! The court will determine child custody based on the “best interest of the child” test by evaluating a number of factors. [135] Such an approach would align with attempts by Australian courts to interpret cases consistently with the UNCROC. [47] Joseph Goldstein, Anna Freud and Albert J Solnit, Beyond the Best Interests of the Child (The Free Press, 1973). The child, Colin Newmark, was a 3-year-old with a deadly, aggressive, and advanced form of pediatric cancer known as Burkitt lymphoma. Best interests is the most important factor in family law when making decisions regarding children.It is in a child's best interests that: they are protected from physical or psychological harm, abuse, neglect and family violence both parents have meaningful involvement in the child's life, where possible, and Firstly, that the Magistrate had acted ultra vires because the condition imposed involved a decision about a major long-term issue in respect of children subject to an IAO. The treatment of children starts with deference toward parental preferences.19 Yet, parental rights are not absolute. This article explores the use of the best interest standard in the context of third-party interventions in ongoing parent-child relationships. O’Connor wrote that this “places the best-interest determination solely in the hands of the judge.”4 Although the justices did not necessarily agree on the reasoning, a majority of the Supreme Court concluded that the statute violated the mother’s constitutional rights in the case by imposing grandparent visitation without giving any presumption of validity to her views. We've received widespread press coverage since 2003, Your UKDiss.com purchase is secure and we're rated 4.4/5 on Reviews.io. Instead, courts often invoke the standard to justify a decision made for other reasons. The cases rest on the principle that outside parties should be able to prevent harm to a child and that a best interest analysis should govern that intervention. Finally, courts may define the child’s interests in terms of a larger set of societal concerns. All work is written to order. [113] Health Victoria, School exclusion table (8 October 2015) Victoria State Government < https://www2.health.vic.gov.au/public-health/infectious-diseases/school-exclusion/school-exclusion-table>. [123] Others, such as United Kingdom scholar Fortin,  have argued that ‘by articulating children’s interests as rights … the courts can develop a more structured and analytical approach to decision-making’. The first involves the intrusiveness of the intervention itself. [125] See, eg, John Eekelaar, ‘The Emergence of Children’s Rights’ (1986) 6 Oxford Journal of Legal Studies 161; Michael D A Freeman, ‘Taking Children’s Rights Seriously’ (1987) 1 Children and Society 299; Michael D A Freeman, ‘Taking Children’s Rights More Seriously’ (1992) 6 International Journal of Law and the Family 52; Jane Fortin, ‘Children’s Rights: Are the Courts Now Taking Them More Seriously?’ (2004) 15 King’s College Law Journal 253; Michael Freeman, ‘Why It Remains Important to Take Children’s rights Seriously’ (2007) 15 International Journal of Children’s Rights 5; John Eekelaar, Family Law and Personal Life (Oxford University Press, 2007) 155-62. In short, Justice Osborn held that the Children’s Court Magistrate did not err in concluding that he had the power to make the vaccination order, and, accordingly, upheld the decision to vary the IAOs to allow immunisation of the children. [45] Today, in all Australian jurisdictions, the key principle that informs decision-making in family law and child protection matters is that the best interests of the child are to be the paramount consideration. [50]  Notably, some guidance as to how the principle is to be applied has been espoused by Australian legal academics and courts over the years. What does the 'best interests of children' mean? [139] ZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017) [95–96]. First, the courts rarely apply an open-ended best interest standard that allows third parties to determine the child’s interests independently of parents’ preferences; instead, an open-ended best interest standard is most likely to be applied when the courts do not trust parental decision-making. [27], The appellant submitted that it was inconsistent with the nature of an IAO that the power to make it would permit a Court to interfere in an enduring way with fundamental aspects of the relationship between the child and parent. Best Interest of The Child: Other Considerations. Marsha Garrison observed that “[d]uring the nineteenth century, poverty remained virtually synonymous with neglect and permanent separation of parent and child continued to serve as the preferred remedy for need.”14 Inadequate food, substandard housing, and insufficient supervision justified state intervention and removal of children from their parents.14, Today, courts have become more likely to intervene to prevent neglect and physical and sexual abuse.15 Critics argue, however, that such interventions continue to reflect a “dual system” of family law that defers to the well-off and intervenes in the families of the poor, particularly single-parent families receiving state aid.16, Law professor Cynthia Godsoe observed that findings of child abuse or neglect often focus on “parental conduct that, while perhaps undesirable, does not cause proven harm to children.”17 A study in Washington, DC, found that 75% of children removed from their parents did not meet the necessary standard of risk.17 Instead, children are routinely removed in part for “dirty houses” or parental marijuana use so minimal that the amounts do not merit a misdemeanor criminal charge.17, The courts have acknowledged these reservations. When the Jehovah’s Witness family approved surgery but not the blood transfusions, the court perceived win-win possibilities. The deference given to parental authority is not just a matter of parental rights. This meant at times that the right of a parent to retain their child was more strongly defended than the right of the child to have their interests treated as the court’s primary consideration. In the context of child custody cases, focusing on the child's "best interests" means that all custody and visitation discussions and decisions are made with the ultimate goal of fostering and encouraging the child's happiness, security, mental health, and emotional development into young adulthood. [111] Health Victoria, No jab, no play (2016) Victoria State Government . Before the F… His Honour concluded that the plain words of section 263(7) extended to ‘any’ conditions that the Court considers should be included in the best interests of the child. However, these shortcomings have the potential to be resolved. [7], In September 2017, the Secretary to the DHHS instituted an application to the Children’s Court to vary the conditions of the IAOs pursuant to the CYFA. those which constitute a ‘present emergency’.”24 Instead, the court held that it had “a ‘wide discretion’ to order medical or surgical care and treatment for an infant even over parental objection, if in the Court's judgment the health, safety or welfare of the child requires it.”24. In this 1990 case, the father, Tamas Bosze, had a 12-old-year son, Jean Pierre Bosze, diagnosed with leukemia. English law permitted fathers to appoint guardians with decision-making power over their children, and the Chancery courts had authority to oversee the guardians “for the benefit of the infant.”5 Conflicts arose when testators conditioned inheritances on the father’s appointment of a guardian for the child. 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