14, para. Justice Osborn’s judgment in ZD quickly prompted judicial,[37] academic,[38] and community responses. Fundamental Rights and the Best Interest of the Child in Transnational Families is a timely work on the implementation of the child’s interests in the EU and covers the most relevant topics emerging from the rapid internationalisation of child and family law and from the … [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. Immigration and Refugee Protection Regulations, Hawthorne v. Canada (Minister of Citizenship and Immigration), Freedom of Information and Protection of Privacy Act, The Silenced Citizens: Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children, Children’s Legal Rights in Canada under the United Nations Convention on the Rights of the Child, Legal Hooks and Springboards to Advance Children’s Access to Justice, A child needs legal representation when his or her best interests are to be formally assessed and determined by courts and equivalent bodies (, Decisions must be timely as delays in or prolonged decision making can have particularly adverse effects on children as they evolve (, Decisions concerning a child or children must be motivated, justified and explained; if they differ from the child’s views that should be clearly stated, showing how the child’s best interests were a primary consideration and why other considerations outweighed the views of the child (. Moreover, the judgment did not offer a detailed analysis as to how a right to receive medical treatment is, or should be, a relevant consideration in the application of the best interests principle. In Victoria, the Charterprovides that ‘families are the fundamental group unit of society and are entitled to be protected by society and the State’. [101] Subjecting the child to court-ordered medical treatment would only compound this distress. Info: 11670 words (47 pages) Dissertation Irrespective of the absence of an authority or source of power for parental rights or interests, Justice Osborn acknowledged that he would have limited any ability for the parents to exercise decision-making power in the circumstances. [101] Hansen and Ainsworth, above n 65, 437. In terms of the Convention, in all actions concerning children, whether undertaken by public or private … 37). recent CASES: Barros v. Barros, 309 Conn. 499, 72 A.3d 367 (2013). An Evolving Australian Jurisprudence’ (2018) 25 Journal of Law and Medicine 944. [97] The LDA would also serve to remind decision-makers that their task is to salvage as much as possible of an unsatisfactory situation. Exploring the Domestication of the CRC in South African Jurisprudence (2002–2006)’ (2008) 16 International Journal of Children’s Rights 1. The judge will also consider arguments and evidence bearing on the history of the relationship between the child and each of … [42] ZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017) [22]. [88] Nonetheless, Justice Osborn ultimately left open the question of whether parental rights should be recognised under the Charter. [40] Judicial College of Victoria, Children’s Court Bench Book (5 April 2018) 13.2.2.1 . 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. 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. [90] Therefore, it is unlikely that the outcome of ZD would have been different had there been a clear source for parental rights or interests. [26] Thus, his Honour held the power afforded to the Court by section 263(7) is ‘relevantly unconstrained’. [117] There is also the potential that, owing to the young age of the children and their inability to express their wishes, vaccinating the children may be infringing their rights. Best interests of the child. [133] As this thesis is contemplating the application of the rights-based model in a domestic context, it would add to this model the need to consider any domestic legislative provisions that seek to inform or guide an assessment of a child’s best interests. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions’.[53]. [81] M v M (1988) 166 CLR 69, 76; MRR v GR (2010) 240 CLR 461; JL v Director-General, Community Services Directors [2015] ACTSC 7 (3 February 2016); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) arts 3(2), 5, 7, 8, 9, 10, 18(1), 27(2). [102] His Honour applied the best interests standard and the additional principles set out at section 10(3) of the CYFA. VAT Registration No: 842417633. The first is as a substantive legal right, as described above. The child’s physical, emotional, and mental needs are of top priority, and take precedent over her parents’ interests. [94] However, in the same text, the authors indicated a preference for the phrase of the ‘least detrimental alternative’ (‘LDA’). [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. [143] Second, the articulation of the right to gain appropriate access to medical treatment as conferring a positive duty on the State to provide such treatment for the children would have carried significant implications in terms of the understanding of the obligations of the State pursuant to such rights.[144]. [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]. In determining the scope of section 263(7) of the CYFA some of the children’s rights were raised. [47] Joseph Goldstein, Anna Freud and Albert J Solnit, Beyond the Best Interests of the Child (The Free Press, 1973). [110] Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 24. [134] See generally David Ruschena, ‘The common law and the refusal of medical treatment’ (2006) 14(8) Australian Health Law Bulletin 98; Ian Freckelton, ‘Editorial: Human rights and health law’ (2006) 14 Journal of Law and Medicine 7; Ian Freckelton, ‘Health and Human Rights: Challenges of Implementation and Cultural Change’ (2008) 15(5) Journal of Law and Medicine 794. [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. 6(b)). [135] Diana Bryant, ‘It’s My Body, Isn’t It: Children, Medical Treatment and Human Rights’ (2009) 35 Monash University Law Review 193. The children’s rights under the Charter were also noted. [72] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 17(1). [137] Children, Youth and Families Act 2005 (Vic) s 10(3)(n). Decision-making responsibility and parenting time used to be called custody and access. [21] Justice Osborn accepted that hypothetically this may be the case. This is called the best interests of the child test. [46] The principle can be traced back to two main sources. However, these shortcomings have the potential to be resolved. Of note is the Victorian government’s ‘No Jab, No Play’ policy. That is, while vaccination may have some disadvantages, on balance, these are not significant enough to outweigh the various advantages of vaccination. Thus, regardless of the approach adopted, the outcome would have been the same. In ZD, Justice Osborn recognised the indeterminate and flexible nature of the best interests principle. The above analysis demonstrates that each of the alternatives is not equally suitable in terms of the children’s most immediate predictable developmental needs. 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. This thesis will endeavour to redress the imbalance in the literature. Free resources to assist you with your university studies! [36] In so doing, his Honour clarified that the Children’s Court has a broad power to override parents’ wishes on major long-term decisions for children, even if the children are only in temporary State care. The third is as a procedural rule (GC No. [109] As the UNCROC recognises the right of a child to the enjoyment of the highest attainable standard of health,[110] vaccinating children would be in furtherance of this right. Consensus with respect to the understanding of children’s rights is far from universal. The first is the work of Goldstein, Freud and Solnit and their much-publicised psychoanalytic theory of child development. *You can also browse our support articles here >. [139], However, the treatment of the children’s rights in ZD would be regarded as what Tobin would classify as ‘incidental’. The Family Law Act makes clear that: both parents are responsible for the care and welfare of their children until the children reach 18, and; there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child. We have been championing Canadian lawyers and Canadian law since 1896. The Factors that Are Most Likely to Affect Your Child Custody Case. 14, paras. [37] Judicial College of Victoria, Children’s Court Bench Book: Publication history (5 April 2018) . Best interests of the child must be determined on a case-by-case basis considering the child’s personal context, situation and needs. [75], Although parental rights are recognised in child protection proceedings, and, potentially, under the State-based human rights legislation, their validity is unclear. Each parent’s willingness to support the other’s relationship with the children. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. Without a source for this consideration, judicial reasoning may not be conducted objectively. [4] In August 2016, the Department of Health and Human Services (‘DHHS’) in Victoria instituted proceedings in the Children’s Court on the basis that the children were in need of protection. https://trinitycollegelawreview.org/childrens-best-interests [67] See, eg, John Tobin, ‘Judging the judges: are they adopting the rights approach in matters involving children?’ (2009) 33(2) Melbourne University Law Review 579, 585; Dolgin, above n 65, 2; John Seymour, Children, Parents and the Courts (The Federation Press, 2016) 172; Michael King, ‘The Right Decision for the Child’ (2007) 70(5) Modern Law Review 857, 861. Moreover, the best interests principle is neither a hierarchy nor a series of rules of thumb. Actions include acts, conduct, proposals, services, procedures, decisions, inaction and other measures that concern children directly or indirectly. This may result in reasoning that is not transparent and, thus, arguably subjective and not in the child’s best interests. [135] Such an approach would align with attempts by Australian courts to interpret cases consistently with the UNCROC. [38] Ian Freckelton QC, ‘Vaccination Litigation: The need for rethinking compensation for victims of vaccination injury’ (2018) 25 Journal of Law and Medicine 293. It would allow for the children to be vaccinated while they were in the temporary care of the DHHS as they were at high risk from a measles outbreak and were unable to attend childcare under State laws. [84] [2017] VSC 806 (22 December 2017) [91]. [33] Accordingly, the Charter rights identified by the parties could not be relied upon to argue for an alternative interpretation of section 263(7).[34]. [63] Mains v Redden (2011) 46 Fam LR 400; Howell v Howell [2012] FamCA 903 (1 November 2012); Kingsford v Kingsford [2012] FamCA 889 (19 October 2012); Landis v Landis [2013] FCCA 2413 (17 December 2013); Duke-Randall v Randall [2014] FamCA 126 (12 March 2014); Garzelli v Lewis [No 3] [2014] FamCA 742 (9 September 2014); Arranzio v Moss [2015] FamCA 544 (17 July 2015); Rilak & Tsocas [No 8] [2015] FamCA 1235 (13 November 2015); Holinski v Holinski [2016] FamCA 45 (22 January 2016); Tolbert & Tolbert [No 2] [2016] FamCA 532 (19 May 2016); Malik & Malik [2016] FamCA 473 (10 June 2016). One such protection is the preservation of the child’s best interests in legal proceedings. Published: 9th Mar 2021, A ‘PROBLEM CHILD’? [15], As the case concerned the power vested in the Children’s Court established under the CYFA, his Honour examined the Act in great detail. 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