Decisions on behalf of your Children: The doctrine of ‘Parens Patriae’ in Australia

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Parens Patriae means ‘parent of the country’ in Latin, and refers to the common law doctrine by which the Sovereign has an obligation to protect the interests of those unable to protect themselves, such as children and mentally incapacitated adults.[1] For example, the State has a duty to protect children or the mentally ill who are abused or neglected.

In the earliest days of the doctrine in England, Parens Patriae was restricted to only the mentally incompetent, but in the seventeenth century, the Lord Chancellor extended the duty towards children as well.[2]Parens Patriae jurisdiction does not extend to mentally competent adults, deceased persons or unborn foetuses.

Today in Australia, Parens Patriae jurisdiction is vested in the Supreme Courts of the States and Territories. Many cases involving Parens Patriae concern the protection of children. For example,if a child does not have a guardian or has a negligent or abusive guardian, the state may intervene to ensure the child receives the care they require.

In New South Wales, the Director General may take whatever action is necessary to safeguard or promote the safety, welfare and well-being of a child or young person, if he or she forms the opinion on reasonable grounds, that the child or young person is in need of care and protection. [3]

Examples of action that the Director General would take could be providing, or arranging for the provision of, support services for the child and his or her family, or development in consultation with the parents (jointly or separately), of a care plan to meet the needs of the child or young person and his or her family that doesn’t involve taking the matter before the Children’s Court, or may be registered with the Children’s Court, or is the basis for consent orders made by the Children’s Court.

Other forms of action could be the development, in consultation with one or more primary caregivers for a child or young person, of a parent responsibility contract instead of taking a matter concerning the child’s or young person’s need for care and protection before the Children’s Court (except in the event of a breach of contract), or ensuring the protection of the child or young person by exercising the Director-General’s emergency protection powers, or seeking appropriate orders from the Children’s Court.[4]

The primary concern of the courts in these cases is to come to a result that is in the best interest and welfare of the child. If the child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given the opportunity to express those views freely and to be given due weight taking into account the developmental capacity of the child or young person and the circumstances.[5]

Any action that is taken by the Director General must be age appropriate for the child, taking into account any disability the child or his or her family members may have, as well as the circumstances, language, religion and cultural background of the family.

Removal of the child or young person from his or her usual caregiver may occur only where it is necessary to protect the child or young person from the risk of serious harm.[6]

If a child is taken temporarily or permanently out of his family environment, the child is entitled to special protection and assistance from the State and his or her name, identity, language, cultural and religious ties should, as far as possible be preserved. Unless it is against the best interests and wishes of the child, the child will be able to retain relationships with significant people in their lives such as, birth or adoptive parents, siblings, extended family, peers, family friends and community.

If it is decided that the child should be placed in out-of-home care, the child is entitled to a safe, nurturing, stable and secure environment. Arrangements for this should be made in a timely manner, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.[7]

The jurisdiction of Parens Patriae does not only cover children in unsafe environments, but can extend to a number of situations such as consent of medical treatment. In New South Wales, the refusal or consent of medical treatment made by a child can be overridden by the court to ensure the decision made is in the child’s best interests, because children are legally too young to consent for themselves.

The Director General or an authorized medical officer can also consent in writing to surgical operations on involuntary adult patients (patients detained in a mental health facility or correctional center) if the patient is unable to give consent and it is necessary, as a matter of urgency, to perform a surgical operation in order to save the patient’s life, to prevent serious damage to the patient’s health, or to prevent the patient from suffering or continuing to suffer significant pain or distress.If this happens, the authorized medical officer of the mental health facility in which the involuntary patient is detained must notify the Mental Health Review Tribunal of the operation as soon as possible after the performance of the operation. [8]

Parens Patriae’s jurisdiction can be quite wide, but is fundamentally designed to protect the people that legally do not have the ability to consent or make their own decisions because they are either too young or are not in the right frame of mind to make informed decisions that adhere to their best interests.

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Katherine Patricia Finch

Online Legal Information Author at Family Law Express

University of Sydney

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