Children, Parents and the Courts

Legal Intervention in Family Life
1. Auflage 2016
ISBN: 978-1-76002-071-2
Verlag: Federation Press

Buch, Englisch, 208 Seiten, Format (B × H): 208 mm x 138 mm, Gewicht: 252 g

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?

Autoren/Hrsg.

Seymour, John

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)

Inhaltsverzeichnis

CONTENTSAcknowledgments Author’s Note About the Author
Introduction
Part I: Disputes About Children’s Upbringing1. A Landmark Case: Applying the Paramountcy PrincipleBackground to the Decision The Outcome: What Happened to Carlos? The Lessons to be LearnedNotes
2. Child Protection: The LawThe 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 LawNotes
3. Child Protection: The Law in ActionA Troubled Family Severing Family Links Andrew’s Case Differing Views of the WorldNotes
4. Child Protection: Some DilemmasThe Meaning of “Best Interests” Preserving the Family Unit Child Protection Services: The Reality A Tragic Case (But One of Many) Putting the Case in ContextNotes
5. Best Interests and Cultural and Racial IdentityA 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-making6. Another Landmark Case: A Challenge to Parental AuthorityRe-defining Parental Authority The Decision Gillick Re-visited A Revised View of Parenting (and Some Doubts) Allowing Children to Make Their Own DecisionsNotes
7. Questions About Children’s Freedom to Make Their Own DecisionsRe R and Re W: The Eclipse of Parental Powers? The Role of the Courts Some QuestionsNotes
8. “Still a Child”X’s Case Some Reflections Overriding Parents’ Wishes "Gillick Competence" and Autonomy The Power of the CourtsNotes
9. Parental Powers: Some LimitationsSome Illustrations Some ReflectionsNotes
10. A TriangleIntervention in the Parent/Child Relationship Best Interests How the Law Works Disputes about Decision-making Powers The Role of the Courts A Final WordNotes
Bibliography
Index

Über Autor(innen)

Dr John Seymour has a special interest in children and the law. From 1979-1981 he acted as the Commissioner in Charge of the Australian Law Reform Commission’s inquiry into child welfare law in the ACT. This inquiry resulted in a substantial and influential report, Child Welfare (ALRC Report No 18, 1981). He maintained this interest when appointed to the Australian National University College of Law, from which he retired in 1998 as a Reader. Among the courses he taught were Child Welfare Law, and Children, Parents and the State. He also taught courses in Criminal Law, Social Welfare Law and Administration of Criminal Justice and undertook medico-legal research, focusing on the legal status of the fetus and litigation arising in the field of obstetrics. His books include Dealing with Young Offenders (Lawbook Co, 1988) and Childbirth and the Law (OUP, 2000). He was a joint editor (with Philp Alston and Stephen Parker) of Children, Rights and the Law (Clarendon, 1992). He has published articles in numerous journals, including the Australian and New Zealand Journal of Criminology, Federal Law Review, Torts Law Journal, Law and Society Review, Oxford Journal of Legal Studies, Journal of Law and Medicine, Modern Law Review and International Journal of Law and the Family. He is currently an Honorary Professor in the ANU College of Law.