The codification of the principle of “best interests of a child” into the legislation does not mean that the interests of the child outweigh all other factors in a case. This thesis concludes by recommending how the most beneficial elements of the three alternative frameworks can be capitalised on to transform the best interests principle in child protection proceedings from something of a ‘problem child’ to a ‘golden child’. This is particularly true in the context of medical treatment for children. [56], Currently, it remains the responsibility of parents to make the decision on whether to vaccinate their child. Consensus with respect to the understanding of children’s rights is far from universal. [89] As such, no clear legislative or common law source for parental rights exists. For the children in ZD, this resulted in court-ordered vaccination. 16.12 The scope of the current provisions requiring the consideration of the best interests of the child may be too narrow. In Troxel, the court considered the constitutionality of a Washington statute that permitted the courts to “order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.”13. [46] The principle can be traced back to two main sources. [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. In the Curran case, it is of course hard to know whether the mother acted out of genuine concern that the twins be subjected to a risky procedure with only a small chance of helping their half-sibling or whether she acted to spite the father. The parents’ decision, whether it advances the 3-year-old’s narrow interests, may benefit the family as a whole. [113]  More broadly, it would also be in the community’s best interests that children are vaccinated. Parent who has best modeled moral values for a child. Although neither judgment was wholly compatible with the substantive rights model, the case for vaccination was overwhelming premised on the children’s right to medical treatment as conferred by the domestic and international legislative instruments. Justice Osborn’s judgment in ZD quickly prompted judicial,[37] academic,[38] and community responses. In doing so, vaccination has the potential to sever the children’s familial identification. They are more likely to do so if the hospital objects or if the donor is mentally disabled. It applies each of these to the facts of ZD to determine whether an alternative framework would have been more effective in achieving protective outcomes for the children involved. University of Minnesota Law School, Minneapolis, Minnesota, Mason MA. Vaccinations, for example, present a free-rider problem.30 Because vaccinations typically involve some risks, the ideal for every individual child would be if the others around the child were vaccinated but not the child herself. This section will reexamine the role of best interest considerations that involve the family as an institution, looking first at cases in which parents withhold lifesaving treatments; second, the tradeoffs among different family members in donation cases; and third, caretaker concerns in modern sterilization cases. [8] Ibid [19]; Children, Youth and Families Act 2005 (Vic) s 268(2). [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. While both the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission were given notice pursuant to Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’),[16] only the Attorney-General intervened. The child, Colin Newmark, was a 3-year-old with a deadly, aggressive, and advanced form of pediatric cancer known as Burkitt lymphoma. [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). 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. The Supreme Court has been reluctant to grant children rights that could justify third-party intervention overriding parental preferences. The State's authority to intervene in this case, therefore, cannot outweigh the Newmarks' parental prerogative and Colin's inherent right to enjoy at least a modicum of human dignity in the short time that was left to him.35, Colin died shortly after the Delaware Supreme Court announced its decision. [91] Robert H Mnookin, ‘Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy’ (1975) 39(3) Law and Contemporary Problems 226. In fact, it seems that the weight of authority is in favour of recognising parental ties as interests rather than rights. Factors to be considered include parental capacity to provide adequate care, sibling and other family relationships, and the child's wishes. The extracts from the Magistrate’s decision also do not indicate that such an analysis was conducted at first instance. Taking a terrified child from his parents’ arms is never an inspiring image. The best interest standard, both when it is strictly applied and when it isn’t, reflects institutional concerns. [32] The Attorney-General submitted that the Charter will only be relevant when a ‘constructional choice’ is open to a Court. Scalia’s opinion underscores the special circumstances of divorce proceedings and it rejects the idea of a best interest standard per se as justification either for intervention in an ongoing family or as the substantive standard by which such interventions are to be judged. 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. [107], On the one hand, vaccination would confer multiple advantages. [44] See, eg, T v M [2002] FMCAfam 227 (30 August 2002); Mains v Redden (2011) 46 Fam LR 400; Howell v Howell [2012] FamCA 903 (1 November 2012); Flynn v Jeffcott [2011] FMCAfam 1239 (25 November 2011); 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). In Victoria, the Charterprovides that ‘families are the fundamental group unit of society and are entitled to be protected by society and the State’. [42] ZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017) [22]. Best Interest of the Child When there is a court case that affects a child, like custody, parental rights, or adoption, the court will consider the "best interest" of the child when making its decision. Note that instead of ‘best interests,’ the terminology used in the NSW Act is children’s ‘safety, welfare and well-being’. All work is written to order. [1] Children and Young People Act 2008 (ACT) s 8; Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9(1); Care and Protection of Children Act 2007 (NT) s 10(1); Children’s Protection Act 1993 (SA) ss 4(3), 21(1), 37(2)(c), 52(3); Children, Young Persons and Their Families Act 1997 (Tas) s 10E; Children, Youth and Families Act 2005 (Vic) s 10(1); Children and Community Services Act 2004 (WA) s 7. [130] Those approaches which tend to overlook, marginalise or misappropriate children’s rights are classified into ‘invisible’, ‘incidental’, ‘selective’, ‘rhetorical’ and ‘superficial’ rights categories. 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. However, what does “the best interests of the child” entail? [47] The second is the United Nations Convention on the Rights of the Child (UNCROC)[48] which states that the best interests of the child ‘shall be a primary consideration’. [94] However, in the same text, the authors indicated a preference for the phrase of the ‘least detrimental alternative’ (‘LDA’). [12] His Honour concluded that the condition was in the best interests of the children. [127] It is within this context that a judge may have the scope to apply elements of a children’s rights model. [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? [64] Accordingly, Justice Osborn’s decision that it was within the legislative mandate of a Children’s Court Magistrate to order vaccination of children when they were in State care under an IAO, was in keeping with the application of the best interests principle by the major authorities that preceded it. [68] If courts are including a consideration of the interests, or even rights, of parents when applying the best interests principle in child protection proceedings, should current legislation be amended to include this as a factor so that the principle can be applied in a more transparent way, ensuring that the children’s best interests are indeed paramount? When the twins were 2 years old, the parents agreed to a parentage order that gave Curran sole custody. Instead, both judgments placed greater emphasis on the practical difficulties the foster carers were facing to find appropriate childcare facilities and the inconvenience of the children being sent home from school in the case of any perceived threat of contracting a disease. The “best interest of the child” test means that the courts are required to balance the ability of each parent to meet the needs of the child or children. In 1927, the US Supreme Court upheld the constitutionality of a Virginia statute authorizing sterilization of institutionalized mental patients without their consent.33 The court famously declared that “[t]hree generations of imbeciles are enough.”33 Yet, Carrie Buck had been institutionalized after a rape and later writers would show that neither she nor her honor student daughter were either promiscuous or “imbeciles.”32, Given this history, the courts are understandably wary of authorizing sterilizations, whatever the parents’ wishes. The court nonetheless appointed a guardian for the purpose of ensuring consent to the surgery and, if needed, the blood transfusions. [126] Jeremy Waldron, ‘Judges as Moral Reasoners’ (2009) 7 International Journal of Constitutional Law 2, 10. Although the best interest standard is centuries old, its meaning has never been fixed. Dissertation The case also gave a clear articulation of the judicial presumption that the interests of the child are best served in the marital family. The court explained:The egregious facts of this case indicate that Colin's proposed medical treatment was highly invasive, painful, involved terrible temporary and potentially permanent side effects, posed an unacceptably low chance of success, and a high risk that the treatment itself would cause his death. [1] Despite the large amount of scholarly work that considers the best interests principle as it applies to family law,[2] the adequacy of this principle for child protection matters has not been explored as comprehensively. [68] See J v Lieschke (1987) 162 CLR 447, 463; Re Woolley; Ex parte Applicants M726/2003 (2004) 225 CLR 1, 57-58; Re Cameron [2012] NSWSC 1453 (23 November 2012) [20]. This is problematic, as without confirmation as to parents’ legal standing, some judges may give greater deference to parental wishes when applying the best interests principle, because of the perception that parents have rights rather than interests. The court rejected the application of a substituted judgment test on the grounds that it required finding something that did not exist: the children’s likely preferences based on their “philosophical, religious and moral views, life goals, values about the purpose of life and the way it should be lived, and attitudes toward sickness, medical procedures, suffering and death.”26 The twins simply had not had the opportunity to develop moral worldviews and any substituted judgment would therefore have to rely on the decision-maker’s “speculation and conjecture.”26, Instead, the court applied a best interest test.26 It observed that the mother, as the twins’ sole custodian, could under Illinois law “determine the child[ren]'s upbringing, including but not limited to, [the] education, health care and religious training, unless the court, after hearing, finds, upon motion by the noncustodial parent, that the absence of a specific limitation of the custodian's authority would clearly be contrary to the best interests of the child[ren].”26 In defining the children’s interests, the court noted that donation could be considered to be in a child’s best interests when the donor had a close relationship with the recipient and the recipient’s death would have a significant effect on the child’s quality of the child’s life.26 In the Curran case, however, the twins had met their older half-brother only twice, for brief periods.26, The court effectively sealed the outcome once it decided to base the decision on the best interest of the twins. 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