1.3 legal rights and responsibilities
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This document outlines the legal rights and responsibilities of parents and children under family law. It discusses the rights of children to safety, care, and protection, as well as the responsibilities of parents to financially support and care for their children. The rights of parents to make decisions for their children are also described. The document then discusses circumstances where the state may intervene to protect children's welfare. Specific legislation and notable court cases related to family law and children's rights are also summarized.
1.3 legal rights and responsibilities
- 1. Legal rights and obligations of parents and children The Nature of Family Law
- 2. Rights of Children Include things like: the right to be safe to be treated with affection to be educated to have medical care, and to be protected against cruelty and abuse. Parents are there to protect children’s rights until they are old enough to make their own way in the world.
- 3. Responsibilities of Parents Parents have a duty to: protect their child from harm provide their child with food, clothing and a place to live financially support their child provide safety, supervision and control provide medical care provide an education.
- 4. Rights of Parents The law allows parents to bring up their children according to their own values and beliefs. This means that parents have the right to make decisions about how they bring up their children without interference unless there are very good reasons and the child’s wellbeing is at risk. Decisions such as religion, schooling, discipline, medical treatment and where a child lives are a parent’s right and responsibility to make. These decisions will not be interfered with unless, for example, a child is badly treated, is not receiving education, is not allowed medical treatment when it is needed or there is an order by a court.
- 5. 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.
- 6. Specific Legislation Children and Young Persons (Care and Protection) Act 1998 (NSW) Crimes Act 1900 (NSW) - see Division 10 for sexual offences against children Relates to guardianship and care of children, and also reporting of children who are at risk of harm Also outlines Children's Court Proceedings Includes specific items outlawing: Sexual intercourse-child under 10 Attempting … to have sexual intercourse with child under 10 Sexual intercourse-child between 10 and 16 Attempting … to have sexual intercourse with child between 10 and 16 Persistent sexual abuse of a child Procuring or grooming child under 16 for unlawful sexual activity Sexual intercourse with child between 16 and 18 under special care
- 7. UN CONVENTION ON THE RIGHTS OF THE CHILD Explicit recognition of State responsibility for children and its duty of care towards them. Australia has ratified UNCRC; is 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.
- 8. NGO - National Association for Prevention of Child Abuse and Neglect (NAPCAN)
- 10. Marion’s Case Secretary of the Department of Health and Community Services v JWB and SMB “Marion” was a 14yo girl with intellectual disabilities, severe deafness, epilepsy and other disorders Her parents asked the Family Court for permission to give Marion a hysterctomy Was not an issue of “is this in the best interests of the child”, but “who has the right to make this decision” – the parents, Marion, or the Family Court. The parents argued argued that the decision to sterilise a child is not too different from other major decisions that parents and guardians have to make for children . Their argument was that, provided such a procedure is in the best interests of the child, parents as guardians can give lawful consent to a sterilisation on behalf of a mentally incompetent child.
- 11. In the case, the High Court ruled that whilst parents may consent to medical treatment for their children, this authority does not extend to treatment which is not in the child’s best interests. Second, the Court held that where medical treatment has sterilisation as its principal objective, parents do not have the authority to consent on behalf of their child.
- 12. Re Alex Alex was a 13yo female, and a ward of the state (Victoria) Alex was diagnosed as experiencing the condition called "Gender Indentiy Disorder" (known commonly as "Transsexualism") Alex applied to the Family Court for permission to undergo hormonal medical treatment to “affirm” his male sexual identity. The key issue was whether the Victorian State Government Department responsible for Alex's care and welfare or the Family Court of Australia should be responsibile for the authorisation of medical treatment involving the administration of hormonal therapies to assist Alex to have a body with secondary sexual characteristics most appropriate to his innate affirmed male sex and, in so doing, relieve him of the extreme suffering he was experiencing as a result of female pubertal development.
- 13. The judge decided: The medical treatment sought by Alex was "Special Medical Treatment" as per the High Court of Australia's decision in Marion's Case and therefore only the Family Court of Australia, and not parents or legal guardians, has the legal authority to authorise such treatment. Neither Alex nor any adolescent with transsexualism was capable of authorising such medical treatment on their own behalf. Alex's treating doctors were ultimately authorised by the court to commence a form of hormonal treatment – although this was not administered until after Alex began puberty; Alex later applied to the Family Court fir a double masectomy Alex was permitted to be enrolled in school under a male name
- 14. DOCS let little girl Ebony starve - Ombudsman “Ebony”, a seven-year-old girl, starved to death on a urine-soaked mattress. Her body weighed just 9kg when she was discovered at her home in November 2007. There were 17 separate reports lodged with DoCS, stretching back to 1993, indicating that Ebony and her siblings were at risk from their dysfunctional parents. Of those 17 reports made to DoCS by concerned neighbours, teachers, doctors and other agencies, 13 occurred between 2005 and 2007. DoCS relied on a report by a work-experience student to assess Ebony’s situation; filed other reports as “information only” Ebony's mother was sentenced to life in prison for murder (later reduced to 30 years) and Ebony's father to 16 years behind bars for her manslaughter http://www.news.com.au/national/docs-let-little-girl-ebony-starve-ombudsman/story-e6frfkvr-1225783609933
- 15. Judge allows blood transfusion for Jehovah’s Witness boy, against parents’ wishes The boy, J, is likely to require a liver transplant within the next 2 to 3years and Justice Douglas said without it “death would be inevitable’’. Justice Douglas said the parents were concerned about their son’s health and were willing to agree to a liver transplant, but opposed the application for an order allowing blood transfusion. “It seems to me appropriate to conclude that the sanctity of J’s life, in the end, is a more powerful reason for me to make the orders than is respect for the dignity of beliefs so sincerely held by his parents and him,’’ Justice Douglas said.