best interest of the child case law

[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. It will start by examining the history of the best interest standard, which has had different meanings in different eras. [106] Bilha Davidson Arad and Yochanan Wozner, ‘The least detrimental alternative: Deciding whether to remove children at risk from their homes’ (2011) 44(2) International Social Work 229, 235. ), ss. 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. Divorce Act , R.S.C., 1985, c. 3 (2nd Supp. [119] See, eg, A J Wakefield et al, ‘Ileal-Lymphoid-Nodular Hyperplasia, Non-specific Colitis, and Pervasive Developmental Disorder in Children’ (1998) 351 The Lancet 637; Sherri Tenpenny, Saying No to Vaccines: A Resource Guide for All Ages (NMA Media Press, 2008); Andrew J Wakefield, Callous Disregard: Autism and Vaccines the Truth behind a Tragedy (Skyhorse, 2017). [118] Finally, an argument might be mounted that vaccines can cause serious and sometimes fatal side effects. Moreover, the brother’s death would certainly have an impact on the parents that might affect their relationship with the donor. [13], The children’s mother appealed the condition on the basis of two fundamental issues. The first involves disputes among parties with equal standing. [85] Although Justice Osborn found that the Charter could not be relied upon,[86] his Honour contemplated that section 17(1) encompassed ‘a specific right of parents to make some decisions for their children with respect to medical treatment’.[87]. 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. [129] Tobin develops his model by classifying it into a series of approaches. [88] Secretary to the Department of Human Services v Sanding (2011) 36 VR 221, 257 [157]. Insisting on vaccination of a child in the midst of a pertussis epidemic may well be appropriate, but care should be taken to minimize disruption of ongoing families. A child has an interest in being part of a family, of continuing relationships with those who will provide support during medical treatments, and contributing in turn as a full member of the ongoing community that constitutes the family. The court will determine child custody based on the “best interest of the child” test by evaluating a number of factors. [101] Hansen and Ainsworth, above n 65, 437. 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. In ZD, Justice Osborn recognised the indeterminate and flexible nature of the best interests principle. [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? It will then propose three alternative frameworks to the best interests principle that may redress each of these issues. [74] The ACT Act has similarly noted that families ‘has a broad meaning’. In response, this thesis suggests that the best interests principle is somewhat of a ‘problem child’ when used in the welfare context. That is, while vaccination may have some disadvantages, on balance, these are not significant enough to outweigh the various advantages of vaccination. [17] ZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017) [98]. [62] T v M [2002] FMCAfam 227 (30 August 2002); Flynn v Jeffcott [2011] FMCAfam 1239 (25 November 2011). [115] Tae Hyong Kim, Jennie Johnstone and Mark Loeb, ‘Vaccine herd effect’ (2011) 43(9) Scandinavian Journal of Infectious Diseases 683; Harunor Rashid, Gulam Khandker and Robert Booy, ‘Vaccination and herd immunity: what more do we know?’ (2012) 25(3) Current Opinion in Infectious Diseases 243. 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. In Conservatorship of Valerie N,41 for example, the California Supreme Court denied a parental request to sterilize a mentally disabled adult daughter. The subsequent decisions require a presumption in favor of the views of a fit parent, with many states mandating a showing of detriment to the child to overcome the presumption.10. The factors can be used in cases such as custody, parenting time, and minor guardianships. Dissertation [94] However, in the same text, the authors indicated a preference for the phrase of the ‘least detrimental alternative’ (‘LDA’). D.L.G., 2010 YKSC 44 says all children in Canada have legal rights to be heard in all matters affecting them. It also reflects the court’s consideration of the impact on the child of imposing an outcome on an unwilling caretaker. [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. [140] The references to the various human rights instruments were not developed any further. [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]. The case is unusual in a number of respects. [113]  More broadly, it would also be in the community’s best interests that children are vaccinated. Although a rights-based approach would prima facie have required State intervention on the facts of the case, its adoption would have carried two significant consequences. [25] ZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017) [67]. These rulings articulated a potentially sweeping justification for intervention, allowing the courts to substitute their judgment for the fathers as to where the child’s interests lay.5 Yet, in other respects, they were limited. But how is this principle applied by the courts when legal disputes arise between parents and the State with respect to medical treatment such as vaccination? Disclaimer: This work has been submitted by a student. The decision to permit the surgery without transfusions, however, was either irresponsible because of the greatly increased risk to the child or a failure to make a decision at all because the mother’s position left it up to the doctors to determine whether the surgery without transfusions was too risky to undertake. [8] Ibid [19]; Children, Youth and Families Act 2005 (Vic) s 268(2). Either way, the Curran court’s conclusion, both in terms of the way it structured the legal test and in terms of its analysis of the children’s interests, identified their well-being with the preferences of the custodial parent. Justice Steinfeld’s dissent referred to his “indelible recollection of a government which, to the everlasting shame of its citizens, embarked on a program of genocide and experimentation” and described himself as torn between the desire “to aid an ailing young man and a duty to fully protect unfortunate members of society.”37 He doubted that the court had the power to authorize the donation at all. Exploring the Domestication of the CRC in South African Jurisprudence (2002–2006)’ (2008) 16 International Journal of Children’s Rights 1. [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]. Judgments in best interests cases involving children often make for heart-wrenching reading. Second, in applying a best interest test, courts can and do consider the impact on the child’s caregivers. Moreover, however easy it is to posit cases in which the courts and other third parties should intervene to protect children’s interests, it is equally possible to point to other cases in which such interventions reflect judicial bias. [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 family and the doctors all wanted the surgery. [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. The state ordinarily should defer to parents in an ongoing family in which the parents’ decision-making capacity has not been called into question. The best interest of the child is the overarching factor in deciding Texas family law custody cases. [111] Vaccination would also facilitate the children’s ability to attend school. The best interests of the child factors are 12 things judges consider in cases involving minor children. Before the F… In In re Sampson, a 15-year-old suffered from a rare neurofibromatosis disease that caused extreme disfigurement of the face and neck.24 The mother, a member of the Jehovah’s Witnesses, had consented to surgery to correct the child’s appearance but not to the blood transfusions likely to be necessary in surgery of this kind. 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. If anything, these provisions are ‘child-centric’. 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. Following popular medical opinion, it would provide numerous health benefits for the children,[108] and, at its most extreme, could prove to be lifesaving. Owing to the inherently intrusive nature of court-ordered medical procedures, rights of the individual being treated are frequently a factor in proceedings. [74] Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 (21 December 2016) [307]. [122] Some, such as United States scholar Guggenheim, regard it as a confused concept that ‘has less substantive content and is less coherent than many would suppose’. [21] Justice Osborn accepted that hypothetically this may be the case. In determining the scope of section 263(7) of the CYFA some of the children’s rights were raised. [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’. [35] The appeal was dismissed. [54]  The weight to be accorded to the factors has been left to judicial discretion. 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. Despite this, in applying the best interests principle to the facts, ZD highlighted three significant shortcomings of the principle when administered in child protection proceedings. [24] Children, Youth and Families Act 2005 (Vic) s 3. This is particularly true in the context of medical treatment for children. [50] Amanda Shea Hart, ‘The silent minority: The voice of the child in family law’ (2003) 28(4) Children Australia 31, 32. 1971. [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. Second, the article will address the nature of the family as an ongoing unit and the question of whether interests beyond those addressed in the best interest standard are a legitimate part of family decision-making. [80] That is, they must be considered when deciding what is in the child’s best interests. [100] Ultimately, the LDA could add a much-needed dose of reality and pragmatism to the decision-making process in child protection matters. This question is for testing whether or not you are a human visitor and to prevent automated spam submissions. Review occurs either when the parents do not agree with each other or when a third party questions the parents’ wishes. ; Dolgin, above n 65, 2; Patrick Parkinson, ‘The values of parliament and the best interests of children – A response to Professor Chisholm’, above n 2, 214; Hansen and Ainsworth, above n 65, 431; John Tobin, ‘Judging the judges: are they adopting the rights approach in matters involving children?’, above n 67, 591. 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. There are some factors, though, that you can expect a judge to consider. 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. [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. Acknowledging these reasons may make the decisions that affect children’s interests more comprehensible. Below, each of these codes is unraveled: It is a subjective, discretionary test, in which all circumstances affecting the child are taken into account. 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. Is a parent an actual caretaker and part of the child’s life. [46] Family Law Act 1975 (Cth) s 60CA, 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 8(2)(a); Children, Youth and Families Act 2005 (Vic) s 10(1); Children and Community Services Act 2004 (WA) s 7. All states use a “best interest of the child” standard in disputed custody cases. These concerns involve the family as a unit. An empirical review found that in all but 2 cases, the courts ordered the transfusions over parental objections.23 The 2 exceptions involved older teens, close to the age of majority, who shared the parents’ religious beliefs and agreed with the parents’ decision. . [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 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. Yet, the parents had offered testimony about contraceptive efforts that failed because of their daughter’s lack of cooperation, more evidence than had been offered in Ruby v Massey.41 As a practical matter, proving that she had the ability to conceive would be difficult and ruling out the possibility of other contraceptives was close to impossible because the court identified 49 different contraceptives that could be tried.41 The effect of the decision diverted attention toward hard-to-prove medical issues instead of Valerie’s interest in avoiding pregnancy, an interest that included the impact on her caregivers and the type of supervision that she would need.42 Valerie’s interests, to a greater degree than the institutionalized girls in Ruby v Massey, depended on her parents’ ability to care for her and their confidence in their ability to do so. 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. The standard clearly begins as a justification for intervention. 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. Ask a family law court judge to name the most difficult type of case to decide and most likely she or he will say move-away child custody cases, which in family law parlance means when one party seeks to relocate with her or his child to another geographic area. [9] ZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017) [18]. [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. [137] Children, Youth and Families Act 2005 (Vic) s 10(3)(n). This means that from criminal cases involving a child; to cases of adoption; to divorces involving a child or children the … 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. Even though the parents and the Department of Mental Health agreed that the operation should take place, the court of appeals split 4 to 3 in authorizing the operation. The girl who had already begun to menstruate suffered from severe and painful cramping, could not care for her own hygienic needs, and experienced psychological stress during her periods. The desires and wishes of the child as communicated through the Guardian ad Litem. 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. Generally speaking, it's often in the child's best interests … A second type of case, which produces far more deference to parental decision-making on institutional grounds, involves donation to siblings. [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. [60] See, eg, Freckelton QC, ‘Vaccination Litigation: The need for rethinking compensation for victims of vaccination injury’, above n 38, 293; Kaye, above n 43,73. The Children’s Act 38 of 2005 further emphasizes the right and best interests of the child. 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. [98] As stated by Goldstein and his co-authors, ‘It should reduce the likelihood of their becoming enmeshed in the hope and magic associated with “best”, which often mistakenly leads them into believing that they have greater power for doing “good” than “bad”’.[99]. The best interest of the child standard is centuries old.3 It begins as a trump that supersedes parental authority. Consider the Connecticut case of Ruby v Massey.40 The case involved 3 girls in state facilities on the verge of adolescence with significant mental disabilities. [112] Without it they would be subject to being sent home in the event of any perceived threat that they may contract measles or other diseases against which vaccination guards. [42] This thesis has reviewed previous disputes in relation to immunisation of children and argues that ZD was the first case of its kind to reach such a conclusion in the child protection context. Thus, despite its broad and undefined nature, the Australian courts and legislature have made clear that the best interests principle is axiomatic in proceedings involving children. The specifics of how a judge should approach examining the best interest of the child was first set out by the Texas Supreme Court in 1976 in the case of Holley v. Best Interest of The Child: Other Considerations. 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. The Illinois courts refused to order the tests or the bone marrow donation and Jean Pierre died 2 months after the court ruling.27. However, cases in which parents oppose the vaccination of their children have a lengthy history of coming before the Australian Family Court. Like the social workers who initiate abuse and neglect charges, these third parties may initiate actions when they disapprove of parents’ decisions. In ZD, the Children’s Court Magistrate invoked section 263(7) of the CYFA to override the wishes of the parents and determine that varying the IAO to include a condition for vaccination was in the best interests of the children. [97] The LDA would also serve to remind decision-makers that their task is to salvage as much as possible of an unsatisfactory situation. A closer examination of one of the cases in which court applied a lower standard, however, illustrates just why the courts are particularly willing to intervene in these cases as a matter of institutional allocation of decision-making responsibility. To do so, this thesis proposes three alternative frameworks to the best interests principle. Health care decision-making takes place in between the custody and the termination of parental status arenas. 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. This thesis will endeavour to redress the imbalance in the literature. Factors Against a Child's Best Interests Judges strongly favor keeping a child in an arrangement that the child is familiar with, such as allowing a child to remain in the same school or neighborhood. When the state does intervene, the children’s interests still cannot be determined in isolation. The harder cases involve the use of the standard either to determine when the courts should intervene in an intact parent-child relationship or what standard to use when they do. Note that instead of ‘best interests,’ the terminology used in the NSW Act is children’s ‘safety, welfare and well-being’. 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. It also forms one of the foundation stones of the Convention on the Rights of the Child. Yet, the courts routinely override parental objections to mandatory vaccinations.31 In this context, the parents’ preferences for the child and, indeed, the individual child’s interests are largely irrelevant. Yet, the idea of family privacy is not identical to the notion of parents’ rights and parents’ rights, where they do exist, are not absolute. They argue that, given the risk factors to children and adult victims in cases of domestic violence, the concept of “the best interests of the child’ should suggest heightened attention to domestic violence in custody evaluations, especially given judicial reliance on evaluators” reports and recommendations. The two alternatives in ZD were simple: to vaccinate the children or not to vaccinate the children. 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. 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