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Overview

The online version of Hot Topics 81: Child care and protectionwas updated in February 2015. The update includes changes made to the Children and Young Persons (Care and Protection) Act 1988 and the Adoption Act 2000 which came into effect on 29 October 2014.

The primary responsibility for parenting and for decisions about children’s health, schooling and cultural upbringing in Australia generally lies with parents; in some cultures and in Indigenous communities children’s kinship groups are also influential and important.

The ‘State’ – meaning the legal system and institutional structure that exercises authority within a jurisdiction – also has an interest in children’s development and in their capacity to participate in and contribute to society. Ensuring the safety, welfare and wellbeing of children is now generally accepted as a responsibility of the State, and the State is increasingly seen as having a role in protecting and upholding children’s rights and for ensuring services and the provision of health care, education, and other forms of assistance to families with children.

State intervention

When the family is not able to, or fails to provide adequate care and protection for children, the State may intervene in various ways.

These include:

  • assessing and determining parents' obligations to support children financially and enforcing those obligations
  • mandating school attendance for school-age children
  • initiating investigations and court action to determine whether there is any need to intervene to protect the child
  • (as a last resort) by removing children from the care of their parents.

Government responsibilities

In Australia the states and territories carry the primary responsibility and power to make laws and decisions about the care and protection of children (previously referred to as ‘child welfare’). Child protection legislation and various government and non-government agencies concerned with the safety and wellbeing of children are state and territory-based.

However, the Commonwealth also has jurisdiction in two ways. First, recent decisions of the High Court of Australia have confirmed that the Commonwealth and its federal courts have a special power to make laws and decisions about the care and protection of children of married parents where a particular right, duty or responsibility (such as parental responsibility) is involved, or if the child’s issue also involves other Commonwealth heads of power listed in the Constitution. This is referred to as the Commonwealth’s ‘special welfare jurisdiction’.

The welfare jurisdiction of the Commonwealth is a version of the ancient legal doctrine of ‘parens patriae’. It involves the Head of State having special responsibility for people unable to care for themselves. In practical terms, the special welfare jurisdiction of the Commonwealth is limited to a type of review of the exercise of parental responsibility. It is an extension of the usual work of the Family Court (about parenting issues arising in circumstances of relationship breakdown) and is called upon relatively infrequently.

Second, the Commonwealth Government is assuming increased responsibility for a national approach to children and young people. For example, the Commonwealth through the Council of Australian Governments has developed and is implementing a National Framework for Protecting Australia’s Children which aims to deliver a more integrated response linking supports and services across jurisdictions – ‘avoiding duplication, coordinating planning and implementation and better sharing of information and innovation’. One area where there continues to be some difficulty between the Commonwealth’s role and state and territory responsibility involves families where allegations of abuse and neglect are made in the context of parental separation and disagreement about the living arrangements for the children. The Family Courts, which are under the jurisdiction of the Commonwealth (except in WA), do not have the capacity or ‘machinery’ to ‘investigate’ such allegations and have to rely on the state/territory statutory agency to do so.

Hot Tip: parens patriae

Parens patriae literally means ‘parent of his country’. The nature of the parens patriae jurisdiction was stated by Lord Esher MR, in R v Gyngall[1893] 2 QB 232 at p 241:

The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child.

UN Convention on the rights of the child

In Australia, there is increasing recognition of State responsibility for children and its duty of care towards them. This is explicit in the United Nations Convention on the Rights of the Child and in recently revised child welfare legislation. By ratifying the Convention, Australia and other countries (not including the USA), have committed to recognising and implementing the provisions of the Convention, and in particular the three P’s:

  • provision
  • protection
  • participation.

The main provisions of the Convention concern children’s rights to:

  • grow up in a family environment
  • health care
  • education
  • be protected from violence and exploitation
  • have the opportunity to express their views and influence decision making that concerns them.

The Convention formalises what children might expect from the State, while still recognising the primacy of children’s relationships with their parents and their family.

Having ratified the Convention, the Australian Government has an obligation to implement the Convention and to report to the United Nations Committee on the Rights of the Child on its compliance. The Australian Federal Government and state governments have given only limited effect to incorporating the Convention into local legislation. For example, the Family Law Act 1975 includes section 60CA which states that:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

This relates to Article 3 of the UN Convention which states that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

It goes even further by referring to ‘the paramount consideration’ rather than ‘a primary consideration’. Similarly, the first principle of the NSW Children and Young Persons (Care and Protection) Act 1998, states that ‘the safety, welfare and well-being of the child or young person are paramount’ (section 9). The Adoption of Children Act 2000 (NSW), modelled on Article 21 of the Convention, also states that the ‘best interests of the child, both in childhood and in later life, must be the paramount consideration’ for persons making decisions about the adoption of a child (section 8).

Several other parts of the Convention are relevant to the relative responsibilities of parents and the State. Part 2 of Article 3 states that:

States Parties [in this case, the Australian Government] undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her …

Article 9 makes it clear that children should not be removed from their parents ‘… except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child …’ for example, when a child's basic needs are not being met by parents, the child is exposed to domestic violence in the home or is at significant risk of serious or psychological harm.

 

Cases: Commonwealth special welfare powers

Secretary, Department of Health and Community Services v JWB and SMB(‘Marion’s case’) (1992) 175 CLR 218, [1992] HCA 15.
This case concerned the right of parents to authorise a hysterectomy for their intellectually disabled 14-year-old daughter. The High Court decided that such a decision (being made not for therapeutic reasons) ‘fell outside the ordinary powers, rights and duties of a parent’. Therefore Court authorisation was required, so that the parents avoided committing an unlawful assault under state law.

Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20.
The High Court on appeal overturned a Family Court decision that it could use its special welfare jurisdiction to order the Minister for Immigration to release five children from immigration detention.

Re Alex: Hormonal Treatment for Gender Identity Dysphoria[2004] Fam CA 297.
The case involved the Family Court making orders to permit a 13-year-old girl to begin a program of hormone treatment to become a boy. The Family Court applied the High Court’s decision in Marion’s case and found that parents cannot consent to medical intervention where the procedure is invasive, permanent and irreversible and not for the purpose of curing a malfunction or disease. In these cases, authorisation must be sought from the court.