In upholding the aunt’s conviction, the Supreme Court observed thatThe right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death . This is because a rights-based approach would have required the Magistrate and Justice Osborn to conceptualise the issue much more forcefully in terms of the children’s right to gain access to appropriate health services and the highest attainable standard of health. The concept of parental rights is not a novel one, with a string of case law couching parents’ interests in the language of rights. 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. [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. B.J.G. [116], On the other hand, vaccinating children could have disadvantages. It also reflects the court’s consideration of the impact on the child of imposing an outcome on an unwilling caretaker. 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. 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. [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). Registered Data Controller No: Z1821391. Justice Osborn’s judgment in ZD quickly prompted judicial,[37] academic,[38] and community responses. Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child's welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately. [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. [88] Secretary to the Department of Human Services v Sanding (2011) 36 VR 221, 257 [157]. 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. [72] ‘Families’ is not defined in the Charter. If the father wants his son circumcised and the mother does not, the parents may appeal to the courts and the courts typically resolve the matter in accordance with their assessment of the child’s best interest. Generally speaking, it's often in the child's best interests … At the time of the trial, the three children concerned were aged two, three and five years. The best interests of the child factors are 12 things judges consider in cases involving minor children. [71] Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2004 (ACT). [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. [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). [92] As a result,  some suggest the principle produces widely discrepant, even contradictory results in child protection proceedings. Thus, it was necessary for Justice Osborn to decide whether the Charter had any bearing on the question of construction of section 263(7). The parents’ decision, whether it advances the 3-year-old’s narrow interests, may benefit the family as a whole. Exploring the Domestication of the CRC in South African Jurisprudence (2002–2006)’ (2008) 16 International Journal of Children’s Rights 1. Parent who has best modeled moral values for a child. [132] Tobin’s substantive-rights model involves a consideration of: (a) the wishes of a child; (b) the relevance of any other rights under the UNCROC; (c) the particular circumstances of the child; and (d) any available empirical evidence which may be of relevance. 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. 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. In these decisions, the courts typically defer to the preferences of the primary custodian. [67] This subjugation is exacerbated when the courts recognise parents as having rights with respect to their children rather than interests. [124] Jane Fortin, ‘Accommodating Children’s Rights in a Post Human rights Act Era’ (2006) 69 Modern Law Review 299, 326. 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 children and therefore require decision[emphasis added] The best interests principle can be seen as the guiding principle of the entire Convention; it is an umbrella provision … 1. The string of cases demonstrates that the dominant trend seems to be for courts to employ the best interests principle to permit State intervention, and to override the wishes of parents and children, where to do so is necessary in order to protect the health of the child. The clearest examples involve a risk of harm to the child, particularly when the parents indicate that they are willing to sacrifice the child’s interests to vindicate the parents’ beliefs or commitments. T In ZD, Justice Osborn recognised the indeterminate and flexible nature of the best interests principle. Best Interest of The Child: Other Considerations. Article 3 (1) of the CRC provides that. The trial court, concluding that spiritual treatment was an inadequate alternative to chemotherapy, ruled that the failure to provide medically approved treatments constituted neglect under Delaware law.35, The Supreme Court of Delaware reversed the decision. [92] See, eg, Jon Elster, ‘Solomonic Judgments: Against the Best Interest of the Child’ (1987) 54(1) The University of Chicago Law Review 1; Martha L Fineman and Ann Opie, ‘The Uses of Social Science Data in Legal Policymaking: Custody Determinations at Divorce’ (1987) 1 Wisconsin Law Review 107; Dolgin, above n 65, 2; Hansen and Ainsworth, above n 65,431; Dickey, above n 51,159; Seymour, above n 67, 170. Courts should understandably be wary of religious convictions for which parents must risk their membership in a religious community to act in their children’s interests or of cases in which parental convenience may outweigh children’s needs. Legal Applications of the “Best Interest of the Child” Standard: Judicial Rationalization or a Measure of Institutional Competence? Referring to the Magistrates’ reasoning, Justice Osborn agreed that the desirability of the children to be supported to gain access to appropriate health services as promoted by the CYFA,[137] and the right of the children to the highest attainable standard of health as proposed by the UNCROC,[138] were relevant considerations in determining the best interests of the children. The family and the doctors all wanted the surgery. 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. 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. [73] Victorian case law has also affirmed that this term is to be ‘construed broadly’. [41] Judicial College of Victoria, Children’s Court Bench Book (5 April 2018) . 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. The court nonetheless appointed a guardian for the purpose of ensuring consent to the surgery and, if needed, the blood transfusions. [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. 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. Free resources to assist you with your university studies! [111] Vaccination would also facilitate the children’s ability to attend school. However, its efficacy to bring about protective outcomes for children has been questioned by some legal academics. Best Interests of the Child - Definition, Examples, Processes These decisions have been more effective in indicating state opposition to sterilization than in providing individualized determinations of the children’s needs. As such, the courts are likely to consider parental interests regarding medical decisions for their children when applying the best interests principle. [7] ZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017) [18]. The court, after hearing testimony that the recipient’s death would be extremely traumatic for the donor, concluded that “it would not only be beneficial to [the ward's brother] but also beneficial to [the ward] because [the ward] was greatly dependent upon [his brother], emotionally and psychologically, and that [the ward's] well-being would be jeopardized more severely by the loss of his brother than by the removal of a kidney.”37. 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. The factors can be used in cases such as custody, parenting time, and minor guardianships. [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. . [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. [121] Joseph Goldstein, Anna Freud and Albert J Solnit, The Best Interests of the Child: The Least Detrimental Alternative (The Free Press, 1996) xiii. Since the US has not yet ratified the UN Convention on the Rights of the Child, which is the central instrument defining and providing the right of the best interests of the child for much of the world, a different set of laws, precedents, and applications apply. [141] ZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017) [11], [22]. This is so despite the absence of a clear source for parental interests to serve as a relevant consideration in the application of the principle. [123] Martin Guggenheim, What’s Wrong with Children’s Rights (Harvard University Press, 2005) xii. Consider, for example, the state response to parents who refuse to vaccinate their 3-year-old. [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. Health Victoria, No jab, no play (2016) Victoria State Government . 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. I then address the nature of the family and the question of whether interests beyond those addressed in the child’s best interest standard are a legitimate part of family decision-making. 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. An application of the LDA would require the court to focus on how well each of the two alternatives suited the children’s’ needs. [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]. The amount of quality time that child has spent with each parent. [123] Others, such as United Kingdom scholar Fortin,  have argued that ‘by articulating children’s interests as rights … the courts can develop a more structured and analytical approach to decision-making’. Parent who has provided the most age appropriate discipline for a child. [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]. 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. The court will determine child custody based on the “best interest of the child” test by evaluating a number of factors. [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. 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. For foster carers, it would eliminate substantial practical difficulties with respect to the ability of the children to use child care facilities owing to the Victorian State government’s ‘No jab, no play’ policy. [22] However, his Honour was not persuaded that the condition in this case went beyond the purpose of seeking to ensure the best interests of the children during the operation of the IAOs. [127] It is within this context that a judge may have the scope to apply elements of a children’s rights model. [109] Jon Wardle et al, ‘Complementary Medicine and Childhood Immunisation: A Critical Review’ (2016) 34 Vaccine 4484; Walter A Orenstein and Rafi Ahmed, ‘Simply put: vaccination saves lives’ (2017) 114(16) Proceedings of the National Academy of Sciences of the United States of America 4031. I suspect that the court at least implicitly applied the following calculus to the decision. [113]  More broadly, it would also be in the community’s best interests that children are vaccinated. The Supreme Court has been reluctant to grant children rights that could justify third-party intervention overriding parental preferences. 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. If the courts rule that the parents must facilitate the vaccination and the parents refuse to comply, the courts could authorize state officials to remove the child from the parents’ custody and allow the doctors to give the child the shots. [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]. The parents argued that the need to provide that supervision affected the parents’ ability to provide continuing care. His Honour could also have had regard to parental interests under section 10(3)(r) which permits ‘any other relevant consideration’. This article will explore the question of the best interest standard in the context of third-party interventions in ongoing parent-child relationships. You will be redirected to to login or to create your account. Justice O’Connor’s plurality opinion emphasized the constitutional protection accorded to “the interest of parents in the care, custody, and control of their children.”4 In identifying the problems with the Washington statute, O’Connor underscored its breadth, noting that the statute allowed “any person” to petition “at any time” (italics in original)4 and that the statute applied a best interest standard with no deference whatsoever to the parents’ views. [94] Goldstein, Freud and Solnit, above n 47, 53. [130] Those approaches which tend to overlook, marginalise or misappropriate children’s rights are classified into ‘invisible’, ‘incidental’, ‘selective’, ‘rhetorical’ and ‘superficial’ rights categories. In Strunk v Strunk,37 for example, the Kentucky Court of Appeals authorized a kidney transplant from a mentally disabled adult to his 28-year-old brother. Rather, as expressed in the High Court decision of CDJ v VAJ, it is a flexible touchstone, with each case decided on its merits: ‘It is a mistake to think that there is always one right answer to the questions of what the best interests of the child requires…Best interests are values, not facts. It also stated that “In all matters of importance relating to the health, welfare and education of the children, Mother shall consult and confer with Father, with a view toward adopting and following a harmonious policy.”26. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. [84] Counsel for the appellant relied on section 17(1) which provides for protection of families as the fundamental group unit of society. [107], On the one hand, vaccination would confer multiple advantages. [102] His Honour applied the best interests standard and the additional principles set out at section 10(3) of the CYFA. 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. [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? Address correspondence to John D. Lantos, MD, Children’s Mercy Hospital, 2401 Gillham Rd, Kansas City, MO 64108. [76] Walsh contends this is ‘symbolically important as it implies that today parents are not considered “rights-bearers” in the same way that children are’.[77]. [101] Subjecting the child to court-ordered medical treatment would only compound this distress. [91] Robert H Mnookin, ‘Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy’ (1975) 39(3) Law and Contemporary Problems 226. The state ordinarily should defer to parents in an ongoing family in which the parents’ decision-making capacity has not been called into question. Consider, for example, a dispute between 2 parents over whether a child should have elective surgery to correct an obstruction to the daughter’s nose that occurred as a result of a bicycle accident.28 The father objected that the surgery was unnecessary; the mother (and the treating physician) thought it would improve the child’s quality of life. [96] They contended that to use ‘detrimental’ rather than ‘best interests’ would enable legislatures, courts and child protection agencies to acknowledge and respond to the inherent defects in any child protection proceeding. This is a rather amorphous standard, and one that lends itself to judges’ subjective beliefs about what’s best for children. The child’s background including their sex, age, and personal health characteristics. Nonetheless, the cases reflect an appropriate desire to avoid an automatic conclusion that mental disability justifies sterilization. [137] Children, Youth and Families Act 2005 (Vic) s 10(3)(n). This is mirrored in the reference to ‘best interests’ in section 263(7) and is no narrower than that provided for in section 10(1). Newmark involved family preferences as a factor in the individual child’s best interests; family preferences present a more difficult issue when they involve trade-offs among family members. [120] F Godlee, J Smith and H Marcovitch, ‘Wakefield’s Article Linking MMR Vaccine and Autism was fraudulent’ (2011) 342 British Medical Journal c742; Gregory A Poland and Robert M Jacobson, ‘The Age-Old Struggle against the Antivaccinationists’ (2011) 364 New England Journal of Medicine 97; Brenda L Bartlett and Stephen K Tyring, ‘Safety and efficacy of vaccines’ (2009) 22(2) Dermatologic Therapy 97; Jeffrey, above n 108, 849. The doctors prescribed chemotherapy; the parents, Christian Scientists, preferred to rely on spiritual aid and prayer.35 The parents, who had consented to an earlier surgery, opposed the proposed treatments as a violation of their beliefs. 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. [78] Children, Youth and Families Act 2005 (Vic) s 10(3)(a). [65] See, eg, Janet L Dolgin, ‘Why Has the Best-Interest Standard Survived: The Historic and Social Context’ (1996) 16(1) Children’s Legal Rights Journal 2, 2; Patricia Hansen and Frank Ainsworth, ‘The “best interests of the child” thesis: some thoughts from Australia’ (2009) 18 International Journal of Social Welfare 431; Walsh, above n 51, 47. ; 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. ( 1 ) of the best interests principle Press coverage since 2003, your purchase secure! The two alternatives in ZD quickly prompted judicial, [ 38 ] and community responses response to who... 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