Before the F… Reference this. [124] Jane Fortin, ‘Accommodating Children’s Rights in a Post Human rights Act Era’ (2006) 69 Modern Law Review 299, 326. In Prince v Massachusetts, a member of the Jehovah’s Witnesses had her 9-year-old niece selling newspapers in violation of state labor laws. [84] Counsel for the appellant relied on section 17(1) which provides for protection of families as the fundamental group unit of society. This thesis will apply the LDA to ZD by embarking on its own weighing of the facts. This may be a valid interpretation of section 17(1), particularly as a 2011 Victorian Supreme Court case has recognised that the rights of parents and other family members may be engaged in child protection proceedings by way of the Charter. A recent study found that of 8 cases addressing the proposed sterilization of mentally disabled children, the courts permitted the sterilization in 2 cases, did not permit the sterilization in 4 cases despite similar facts, and deferred decision in the other 2.23 The author concluded that invocation of the best interest standard often obscured rather than illuminated the basis for the decisions.23. On the relatively few occasions when the US Supreme Court has addressed this issue, it has been more likely to limit than expand application of the standard.4 Nonetheless, the distinctions between use of the standard to justify intervention and use of the standard to resolve a case once intervention has occurred have never been clearly delineated. If anything, these provisions are ‘child-centric’. [43] Freckelton QC, ‘Vaccination Litigation: The need for rethinking compensation for victims of vaccination injury’, above n 38, 293; Miranda Kaye, ‘Immunisation disputes in the family law system’ (2017) 31 Australian Journal of Family Law 73. [102] ZD v Department of Health and Human Services [2017] VSC 806 (22 December 2017) [66]. Legal Applications of the “Best Interest of the Child” Standard: Judicial Rationalization or a Measure of Institutional Competence? The best interests principle has been criticised for serving children poorly. However, most state courts generally consider the following factors to determine custody decisions:. For instance, the National Framework for Protecting Australia’s Children states that children ‘have the right to be safe and to receive loving care and support’, while parents ‘have the primary responsibility for raising their children, and ensuring that these rights are upheld’. The parents’ decision, whether it advances the 3-year-old’s narrow interests, may benefit the family as a whole. [109] Jon Wardle et al, ‘Complementary Medicine and Childhood Immunisation: A Critical Review’ (2016) 34 Vaccine 4484; Walter A Orenstein and Rafi Ahmed, ‘Simply put: vaccination saves lives’ (2017) 114(16) Proceedings of the National Academy of Sciences of the United States of America 4031. [135] Such an approach would align with attempts by Australian courts to interpret cases consistently with the UNCROC. The first is the work of Goldstein, Freud and Solnit and their much-publicised psychoanalytic theory of child development. [72] ‘Families’ is not defined in the Charter. 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. That made it relatively easy for the court to substitute its judgment for the mother’s. Age of the children. The justices chided the family court for failing to consider “the special importance and primacy of the familial relationship,” emphasizing that in “many circumstances the State simply is not an adequate surrogate for the judgment of a loving, nurturing parent. Firstly, it cannot be emphasised enough that the best interests of the child is of the utmost importance in all matters concerning the child. The concept of ‘available alternatives’ would bring into focus how limited the capacity of decision-makers is to make valid predictions and how limited the choices generally open to them are for helping a child in trouble. [40] Revisions to the Bench Book also included clarification that section 263(7) can extend to decisions which have significant long-term consequences for the child.[41]. You can view samples of our professional work here. In other words, Justice Osborn’s decision, and, consequently, the reasoning of the Children’s Court Magistrate, would have been the least detrimental alternative as described by Goldstein and his co-authors. In 1982, the Supreme Court, in a 5 to 4 decision, ruled that New York’s “fair preponderance of the evidence” standard was insufficient and that the due process clause required that the state support its allegations “by at least clear and convincing evidence” to terminate parental rights.1 The court observed that “[b]ecause parents subject to termination proceedings are often poor, uneducated, or members of minority groups, such proceedings are often vulnerable to judgments based on cultural or class bias.”1 There is no reason to believe that such determinations would be any different today.18. As such, the courts are likely to consider parental interests regarding medical decisions for their children when applying the best interests principle. [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. Review occurs either when the parents do not agree with each other or when a third party questions the parents’ wishes. FINANCIAL DISCLOSURE: The author has indicated she has no financial relationships relevant to this article to disclose. [117] ZD v Department of Health and Human Services [2017] VSC 806 (22 December 2017) [110]; Secretary to the Department of Human Services v Sanding (2011) 36 VR 221, 257 [157]. The family and the doctors all wanted the surgery. [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 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. The best interest of the child standard can only advance children’s interests when it is sensitive to the importance of the family in creating the context in which children experience the world. 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. There is no standard definition of "best interest" of the child. The case also gave a clear articulation of the judicial presumption that the interests of the child are best served in the marital family. 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. After Jean Pierre’s doctors recommended a bone marrow transplant and Jean Pierre’s other relatives turned out not to be compatible donors, the father asked the twins’ mother to have a blood test performed to determine whether the children were compatible. The best interest standard, both when it is strictly applied and when it isn’t, reflects institutional concerns. [81] These interests are an important factor that are weighed in the balance and accommodated, so far as is possible in the court’s final decision. Boy in transplant legal battle dies of leukemia: Law: Jean-Pierre Bosze's father lost a fight to test a half brother and half sister as bone marrow donors. Instead, the courts struggle with 2 ideas in deciding whether third parties should be allowed to intervene in existing family relationships. Reasons for concern begin with the first cases. The application of a best interest standard in these cases is likely to parallel the same institutional concerns that occur in the context of custody and neglect decisions. The New Jersey court applied the same test as the Curran court; it concluded that overruling the preferences of the custodial parent required a clear showing that the custodial parent’s decision was not in the child’s interest. His Honour determined that section 263(7) was only capable of one interpretation: to consider the best interests of the child in accordance with the CYFA. Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of UKDiss.com. [58] See generally John Eades, ‘Parens Patriae Jurisdiction of Supreme Court is Alive and Kicking’ (2000) 38(1) Law Society Journal 53; Thomas Humphrey, ‘Children, medical treatment and religion: defining the limits of parental responsibility’ (2008) 14(1) Australian Journal of Human Rights 141, 145; Andrew Saxton, ‘Parens patriae – blood transfusion for child despite parental objection’ (2013) 21(2) Australian Health Law Bulletin 205; Michael Gorton AM and Richard Laufer, ‘Re Beth – the powers of the Supreme Courts to deal with children’ (2013) 21(6) Australian Health Law Bulletin 372; Lindy Willmott, Ben White and Neera Bhatia, ‘When Is It in a Child’s Best Interests to Withhold or Withdraw Life-sustaining Treatment? [57] Angus Dawson, ‘The Determination of the Best Interests in Relation to Childhood Immunisation’ (2005) 19(1) Bioethics 72, 72. [121] Joseph Goldstein, Anna Freud and Albert J Solnit, The Best Interests of the Child: The Least Detrimental Alternative (The Free Press, 1996) xiii. The children’s rights under the Charter were also noted. Finally, courts may define the child’s interests in terms of a larger set of societal concerns. In Victoria, the Charterprovides that ‘families are the fundamental group unit of society and are entitled to be protected by society and the State’. This psychological benefit “is not simply one of personal, individual altruism in an abstract theoretical sense, although that may be a factor”; instead, it comes from a continuing relationship between the siblings and the potential impact of the recipient sibling’s death on the donor.36 Practically, however, the courts often do not intervene when the case involves consenting parents and an intact family. It also forms one of the foundation stones of the Convention on the Rights of the Child. [88] Secretary to the Department of Human Services v Sanding (2011) 36 VR 221, 257 [157]. However, its efficacy to bring about protective outcomes for children has been questioned by some legal academics. From Fathers’ Property to Children’s Rights: The History of Child Custody in the United States. However, these shortcomings have the potential to be resolved. In the hearing, the father asked the court to apply a “substituted judgment” test that would attempt to replicate the decision the twins would make if they had reached the age of majority. [132] Tobin’s substantive-rights model involves a consideration of: (a) the wishes of a child; (b) the relevance of any other rights under the UNCROC; (c) the particular circumstances of the child; and (d) any available empirical evidence which may be of relevance. You will be redirected to aap.org to login or to create your account. Company Registration No: 4964706. 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. [35] The appeal was dismissed. For instance, section 10(3) of the CYFA, which contains the best interests principles proscribes that consideration is to be given to the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society,[78] and the need to strengthen, preserve and promote positive relationships between the child and the child’s parents. [19], Section 10(1) of the CYFA provides that ‘the best interests of the child must always be paramount’. On the one hand, health care decisions, unlike custody hearings, do not typically take place within an ongoing judicial proceeding. When the state does intervene, the children’s interests still cannot be determined in isolation. I start by examining the history of the best interest standard and show that it has had different meanings in different eras. [70], Whilst the only current State-based human rights legislation, found in Victoria and ACT,[71] does not explicitly confer rights on parents, by virtue of being members of the broadly defined family unit, parents may be entitled to some rights. The mother had approved the surgery but not the transfusions; therefore, the court could conclude that there was no objection to the surgery itself. 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