A recent study found that of 8 cases addressing the proposed sterilization of mentally disabled children, the courts permitted the sterilization in 2 cases, did not permit the sterilization in 4 cases despite similar facts, and deferred decision in the other 2.23 The author concluded that invocation of the best interest standard often obscured rather than illuminated the basis for the decisions.23. Consent by parents to the sterilization of their mentally retarded offspring has a history of abuse which indicates that parents, at least in this limited context, cannot be presumed to have an identity of interest with their children. Changes through the legislature have meant that the best interests principle, whether in the family law or child protection context, is also qualified by a series of factors, outlined by the relevant Act, that the court must consider in assessing the best interests of the child in each case. Address correspondence to John D. Lantos, MD, Children’s Mercy Hospital, 2401 Gillham Rd, Kansas City, MO 64108. [142] Further, neither judgment involved the contemplation of the extent to which the children’s enjoyment of such rights could be compromised by respecting the wishes and interests of the parents and the State. [114] Vaccination promotes herd immunity;[115] in the school setting this would assist in the protection of children against the outbreak and spread of disease. Bosze had also fathered 3.5-year-old twins in a different relationship. His Honour could also have had regard to parental interests under section 10(3)(r) which permits ‘any other relevant consideration’. FUNDING: Supported by the Claire Giannini Fund. The cases to descend from the early English best interest decisions are abuse and neglect cases and these cases, although they continue to justify intervention in accordance with a broader conception of the child’s interests, have a deservedly mixed reputation. ), ss. The application of a best interest standard in these cases is likely to parallel the same institutional concerns that occur in the context of custody and neglect decisions. Third-party interventions, such as those of doctors or judges, should require something more than simply a difference of opinion about where the child’s interests lie. [90] Therefore, it is unlikely that the outcome of ZD would have been different had there been a clear source for parental rights or interests. [72] ‘Families’ is not defined in the Charter. The court concluded further that the girls would be subject to grave risks if they became pregnant “because they are incapable of communicating with a physician about their own physical condition, i.e., whether they have had fainting spells, whether they are in pain, whether they can feel the fetus move, whether they are in labor.”40 The court also found that they could not reliably use standard means of contraception and that regular gynecologic checkups posed difficulties because of their lack of understanding and cooperation.40 The court concluded that the girls’ best interest justified sterilization. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.20, Judicial intervention is most common when the courts do not trust parental decision-making. [107], On the one hand, vaccination would confer multiple advantages. It took hold in the context of 2 proceedings in which judicial intervention is not at issue. The Colorado Supreme Court held in 1981 thatSimply allowing the parents or guardians of the mentally retarded person to substitute their decision and consent to sterilization for that of the incompetent person is not an adequate solution to the problem. [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 Prince v Massachusetts, a member of the Jehovah’s Witnesses had her 9-year-old niece selling newspapers in violation of state labor laws. The extracts from the Magistrate’s decision also do not indicate that such an analysis was conducted at first instance. [111] Vaccination would also facilitate the children’s ability to attend school. The first involves disputes among parties with equal standing. This section will reexamine the role of best interest considerations that involve the family as an institution, looking first at cases in which parents withhold lifesaving treatments; second, the tradeoffs among different family members in donation cases; and third, caretaker concerns in modern sterilization cases. [135] Such an approach would align with attempts by Australian courts to interpret cases consistently with the UNCROC. [117] ZD v Department of Health and Human Services [2017] VSC 806 (22 December 2017) [110]; Secretary to the Department of Human Services v Sanding (2011) 36 VR 221, 257 [157]. Instead, both judgments placed greater emphasis on the practical difficulties the foster carers were facing to find appropriate childcare facilities and the inconvenience of the children being sent home from school in the case of any perceived threat of contracting a disease. [139], However, the treatment of the children’s rights in ZD would be regarded as what Tobin would classify as ‘incidental’. [129] Tobin develops his model by classifying it into a series of approaches. Finally, those circumstances in which family judgments are suspect should be identified. If the father accepted the inheritance, he ceded his authority over the child; if he did not accept, the English courts concluded that he had waived his parental rights by failing to show “due attention to the interests of the child.”6. Instead, courts often invoke the standard to justify a decision made for other reasons. His Honour concluded that the plain words of section 263(7) extended to ‘any’ conditions that the Court considers should be included in the best interests of the child. [42] ZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017) [22]. [125], A judge’s task, particularly with respect to matters involving children, is not simply to apply existing legal principles in resolving a dispute. Accordingly, the Court can set any conditions on IAOs that relate to the basis on which the child is accommodated, so long as they are in the best interests of the child. 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. [139] ZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017) [95–96]. It then considers how the courts will apply the best interests principle to analogous medical circumstances post-ZD and, again, whether the three alternative frameworks would produce more desirable outcomes for a child involved in such proceedings. Consider, for example, the state response to parents who refuse to vaccinate their 3-year-old. The court nonetheless appointed a guardian for the purpose of ensuring consent to the surgery and, if needed, the blood transfusions. [79] These provisions pertain to families having rights as the fundamental group unit of society rather than to parents having rights as natural guardians. 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. [137] Children, Youth and Families Act 2005 (Vic) s 10(3)(n). T However, without a clear source, this runs the risk of subjugating the children’s interests to the parents’ interests. A psychologist asked specifically what factors would determine the potential psychological effects on a 3.5-year-old child from being a bone marrow donor responded that “first and foremost” is support from the important adults in the child's life.29 The psychologist observed thatThe mother's inability for whatever reason to concur and to support this process probably puts the—not probably, almost certainly puts the children at very serious risks for having adverse psychological consequences or results of this procedure.29, He added further that even if the mother pretended to support the twins during the procedure, the twins might sense her ambivalence and the twins “would not know if they can rely on the mother's emotional expression as a guide for things that would be safe or dangerous for them or good or bad for them.” The psychologist concluded that the result could “compromise her relationship with the children and leave them floating in a nether land in this matter.”29. 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