Overview

The family can be viewed as a private world, one into which courts should be reluctant to intrude. In our society, recognition of the specialness of the parent/child relationship is well entrenched: The best person to bring up a child is the natural parent. Yet legal intervention in this relationship may be justified when children need protection. \nThe resulting tension is the principal subject of this book. An Australian court dealing with a child must seek the outcome most likely to promote that child's best interests . The book includes case studies illustrating the difficulties magistrates and judges have encountered in applying the best interests test. These cases also prompt questions about the capacity of courts to make effective orders when children are not receiving adequate care: a court order cannot re-make a child's life. The first part of the book looks at the various issues that may arise in regards to different views on what best interests may be. Cultural diversity must also be taken into account. To what extent should Australian law seek to accommodate differing views on child-rearing? This question is particularly relevant to an examination of the impact on Indigenous communities of current child protection policies. Cultural bias can be criticised, but the system should not lose sight of the goals and standards expected of procedures designed to achieve what is best for all children, Indigenous and non-Indigenous. \nIn addition to considering cases in which parents' authority is challenged, Part II of the book addresses another issue. When a dispute arises about the medical treatment of a mature child, the child may assert the power to give the necessary consent to, or to decline, the treatment. If the adult world disapproves of the child's decision a court can override it on the ground that the child is vulnerable and needs protection. Is this a benevolent application of the best interests test or unwarranted paternalism?

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9781760020712

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Reviews

This exceptional monograph (187 pages including index) deals with some of the more difficult and important issues of modern Australian society; being the intervention by courts into family life for the protection of children. It is not a criticism of the Courts in the very difficult task which they undertake in this challenging area, to observe that, as yet, no fully acceptable framework has been established for protecting vulnerable children in difficult family circumstances. This thoughtful and insightful work seeks to identify why that is so. In particular, it considers the flaws in the best interests of the child test as it is applied in various courts. Not only is that test somewhat devoid of suitable meaning or content, the courts often lack the ability to frame orders to achieve the intended result. That is particularly so in circumstances where neither parent has the ability or inclination to properly care for the child. Moreover, the best interests of the child test has the difficulty that it struggles to accommodate different views on child rearing and cultural diversity. The second part of this work deals with the issues which arise in relation to the medical treatment of children and, in particular, the adult child who might have limited ability to determine matters in their own interest. This book is an extremely useful contribution to the discussion around these difficult and problematic questions. It has the advantage that the writing style is fluid and clear such that the concepts arise readily from its pages. - Queensland Law Reporter - 26 August 2016 - [2016] 33 QLR

[T]his is a book that not only has appeal to lawyers but is written in a style which will make it useful to all parents and, for that matter, many children as they emerge from their childhood. ... As you examine this book, you will realise that the decisions that courts have made in particular cases can be justified, not so much as applications of rules of law or prior decisions, but as the courts' endeavouring to come to a decision which recognises that the welfare of the child remains paramount. The book addresses confronting issues, but it provides a wakeup call suggesting that, as a society, we can and must do more to protect our precious children even if, at times, we are protecting them from themselves, their family and, perhaps now, we might also have to add, their guards. Read review... - Brian Morgan, Hearsay, November 2016, 77 Written sensitively with objective balance, John Seymour paints a succinct and plain-English picture of when and how the law, the courts and administrators in Australia may intervene to protect a child's best interests . What this picture reveals is that although Australian judges, magistrates and public servants have the best intentions, they are limited in what they can do under the law. The same law is informed by prevalent cultural assumptions about the synonymity of parental rights and authority with duty and responsibility, preferences to keep (biological) families together, and after the legacy of Australia's Stolen Generations, policies mitigating state intervention. Seymour's analysis also highlights the issues caused by limited resources available to Australia's legal justice and administrative systems. ... This book is recommended for parents, teachers, judges, magistrates, practising lawyers, law teachers, students and anyone with professional duties involving children. Read full review... - Magdalene D'Silva, Law Society Journal, October 2016 This exceptional monograph (187 pages including index) deals with some of the more difficult and important issues of modern Australian society; being the intervention by courts into family life for the protection of children. It is not a criticism of the Courts in the very difficult task which they undertake in this challenging area, to observe that, as yet, no fully acceptable framework has been established for protecting vulnerable children in difficult family circumstances. This thoughtful and insightful work seeks to identify why that is so. In particular, it considers the flaws in the best interests of the child test as it is applied in various courts. Not only is that test somewhat devoid of suitable meaning or content, the courts often lack the ability to frame orders to achieve the intended result. That is particularly so in circumstances where neither parent has the ability or inclination to properly care for the child. Moreover, the best interests of the child test has the difficulty that it struggles to accommodate different views on child rearing and cultural diversity. The second part of this work deals with the issues which arise in relation to the medical treatment of children and, in particular, the adult child who might have limited ability to determine matters in their own interest. This book is an extremely useful contribution to the discussion around these difficult and problematic questions. It has the advantage that the writing style is fluid and clear such that the concepts arise readily from its pages. - Queensland Law Reporter - 26 August 2016 - [2016] 33 QLR

Author Information

Dr John Seymour has a special interest in children and the law. From 1979-1981 he acted as the Commissioner in Charge of the Australian Law Reform Commission's inquiry into child welfare law in the ACT. This inquiry resulted in a substantial and influential report, Child Welfare (ALRC Report No 18, 1981). He maintained this interest when appointed to the Australian National University College of Law, from which he retired in 1998 as a Reader. Among the courses he taught were Child Welfare Law, and Children, Parents and the State. He also taught courses in Criminal Law, Social Welfare Law and Administration of Criminal Justice and undertook medico-legal research, focusing on the legal status of the fetus and litigation arising in the field of obstetrics. His books include Dealing with Young Offenders (Lawbook Co, 1988) and Childbirth and the Law (OUP, 2000). He was a joint editor (with Philp Alston and Stephen Parker) of Children, Rights and the Law (Clarendon, 1992). He has published articles in numerous journals, including the Australian and New Zealand Journal of Criminology, Federal Law Review, Torts Law Journal, Law and Society Review, Oxford Journal of Legal Studies, Journal of Law and Medicine, Modern Law Review and International Journal of Law and the Family. He is currently an Honorary Professor in the ANU College of Law.

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