The overarching principle in Australian child protection law is that the best interests of the child are to be regarded as paramount. Despite the large amount of scholarly work that considers the best interests principle as it applies to family law, the adequacy of this principle for child protection matters has not been explored as comprehensively. This thesis will endeavour to redress the imbalance in the literature. Using the recent child protection case of ZD v Secretary to the Department of Health and Human Services (‘ZD’)as a case study, it seeks to analyse the efficacy of the best interests principle to bring about protective outcomes for children in temporary State care when disputes arise in relation to medical decisions for a child.
In ZD, it was held that the Children’s Court has a broad power to use the best interests principle to override parents’ wishes on major long-term decisions for a child, even if the child is only in temporary state care. For the children in ZD, this resulted in court-ordered vaccination. The court’s decision in ZD followed the relatively consistent legal position of the Australian Family Court, namely that vaccination is usually in a child’s best interests. 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. In response, this thesis suggests that the best interests principle is somewhat of a ‘problem child’ when used in the welfare context.
However, these shortcomings have the potential to be resolved. To do so, this thesis proposes three alternative frameworks to the best interests principle. It applies each of these to the facts of ZD to determine whether an alternative framework would have been more effective in achieving protective outcomes for the children involved. 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. This thesis concludes by recommending how the most beneficial elements of the three alternative frameworks can be capitalised on to transform the best interests principle in child protection proceedings from something of a ‘problem child’ to a ‘golden child’.
II ZD v SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES  VSC 806
At the time of the trial, the three children concerned were aged two, three and five years. In August 2016, the Department of Health and Human Services (‘DHHS’) in Victoria instituted proceedings in the Children’s Court on the basis that the children were in need of protection. The Court subsequently made Family Preservation Orders (‘FPOs’), which placed the children in the day-to-day care of their mother and father, subject to a series of conditions made under the Children, Youth and Families Act 2005 (Vic) (‘CYFA’) In August 2017, owing to breaches by the parents of some of the conditions of the FPOs, Interim Accommodation Orders (‘IAOs’) were made by the Court placing the children in foster care.
In September 2017, the Secretary to the DHHS instituted an application to the Children’s Court to vary the conditions of the IAOs pursuant to the CYFA. The variation sought to insert a condition in the IAOs which was contrary to the wishes of both parents. It would allow for the children to be vaccinated while they were in the temporary care of the DHHS as they were at high risk from a measles outbreak and were unable to attend childcare under State laws. The children’s biological mother objected to this variation.
B Reasons of Children’s Court Magistrate
The Children’s Court Magistrate found that the CYFA provided for a wide discretion as to what matters may be considered in determining what is in the best interests of the child. Pursuant to section 263(7), which provides that an IAO ‘may include any conditions that the Court or bail justice considers should be included in the best interests of the child’, the Magistrate imposed a condition on the previously made IAO. The condition authorised the vaccination of the children while in the temporary care of the DHHS. His Honour concluded that the condition was in the best interests of the children.
C Grounds of Appeal
The children’s mother appealed the condition on the basis of two fundamental issues. Firstly, that the Magistrate had acted ultra vires because the condition imposed involved a decision about a major long-term issue in respect of children subject to an IAO. Secondly, that the Magistrate mistook the nature and scope of his powers to include conditions under section 263(7) of the CYFA.
D Judgment of Osborn JA
As the case concerned the power vested in the Children’s Court established under the CYFA, his Honour examined the Act in great detail. While both the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission were given notice pursuant to Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’), only the Attorney-General intervened.
1 The Power to Impose Conditions
Central to the case was the interpretation of the power granted to the Court by section 263(7) of the CYFA to impose conditions on IAOs. 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. Justice Osborn was of the view that the condition for vaccination was such a condition.
2 The Breadth of the Concept of Best Interests
Section 10(1) of the CYFA provides that ‘the best interests of the child must always be paramount’. 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). The appellant submitted that the concept of best interests was so broad that it could extend to matters unrelated to the purpose of an IAO. Justice Osborn accepted that hypothetically this may be the case. 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.
3 Parental Responsibility
Relying on the definition of parental responsibility in the CYFA, the appellant submitted that section 263(7) should not be construed in a way which enabled the Court to make irreversible decisions with respect to a child. Justice Osborn held that section 263(7) is not restricted by the notion of major long-term issues in the way that other sections of the CYFA are. Thus, his Honour held the power afforded to the Court by section 263(7) is ‘relevantly unconstrained’.
4 The Interim Nature of the Order
The appellant submitted that it was inconsistent with the nature of an IAO that the power to make it would permit a Court to interfere in an enduring way with fundamental aspects of the relationship between the child and parent. Justice Osborn found that while IAOs are by definition preliminary in nature, this does not logically mean that a requirement to resolve issues with long-term consequences may not arise during the IAO. 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. Moreover, there is no relevant statutory limit upon the length of the term of an IAO.
5 The Charter of Human Rights and Responsibilities Act 2006
The parties sought to rely on section 17 of the Charter in support of their respective interpretations of section 263(7) of the CYFA. The Attorney-General submitted that the Charter will only be relevant when a ‘constructional choice’ is open to a Court. Thus, it was necessary for Justice Osborn to decide whether the Charter had any bearing on the question of construction of section 263(7). His Honour determined that section 263(7) was only capable of one interpretation: to consider the best interests of the child in accordance with the CYFA. Accordingly, the Charter rights identified by the parties could not be relied upon to argue for an alternative interpretation of section 263(7).
E The Decision
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. The appeal was dismissed. In so doing, his Honour clarified that the Children’s Court has a broad power to override parents’ wishes on major long-term decisions for children, even if the children are only in temporary State care. 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.
F The Impact
Justice Osborn’s judgment in ZD quickly prompted judicial, academic, and community responses. Of particular practical significance were the updated references to the Children’s Court Bench Book in March 2018 by Reserve Magistrate Peter Power OAM. The updates reflected Justice Osborn’s reasoning concerning the operation of best interests principles, particularly sections 10(3)(a), (b), and (n), in relation to section 263(7) and the considerations in fixing conditions in an IAO. Revisions to the Bench Book also included clarification that section 263(7) can extend to decisions which have significant long-term consequences for the child.
III THE BEST INTERESTS PRINCIPLE AND VACCINATION CASE LAW INVOLVING CHILDREN
In ZD, the Children’s Court Magistrate invoked section 263(7) of the CYFA to override the wishes of the parents and determine that varying the IAO to include a condition for vaccination was in the best interests of the children. This thesis has reviewed previous disputes in relation to immunisation of children and argues that ZD was the first case of its kind to reach such a conclusion in the child protection context. However, cases in which parents oppose the vaccination of their children have a lengthy history of coming before the Australian Family Court. These cases have likewise applied the best interests principle in deciding whether to make orders for vaccination of the child. However, before analysing the relationship between vaccination of children and the best interests principle, it is necessary to outline the principle itself.
A The Best Interests Principle
The best interests principle is regarded as ‘the ground on which children’s law is built’. Today, in all Australian jurisdictions, the key principle that informs decision-making in family law and child protection matters is that the best interests of the child are to be the paramount consideration. The principle can be traced back to two main sources. The first is the work of Goldstein, Freud and Solnit and their much-publicised psychoanalytic theory of child development. The second is the United Nations Convention on the Rights of the Child (UNCROC) which states that the best interests of the child ‘shall be a primary consideration’.
The term ‘best interests’ has not specifically been defined by Australian courts or parliament. As such, judicial officers are required to draw upon governing statutes and case law to make determinations that are in the child’s best interests. Notably, some guidance as to how the principle is to be applied has been espoused by Australian legal academics and courts over the years. Academics would appear to come down firmly in support of the proposition that the phrase ‘the best interests of the child are paramount’ in domestic legislation, as opposed to ‘primary’ in the UNCROC, means overriding. Moreover, the best interests principle is neither a hierarchy nor a series of rules of thumb. 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. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions’.
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. The weight to be accorded to the factors has been left to judicial discretion.
Thus, despite its broad and undefined nature, the Australian courts and legislature have made clear that the best interests principle is axiomatic in proceedings involving children. But how is this principle applied by the courts when legal disputes arise between parents and the State with respect to medical treatment such as vaccination?
B Best Interests in Australian Family Law Vaccination Proceedings
Vaccination in order to achieve immunisation has always been controversial and contested. In recent years Australian governments have sought to counter the effects of the continuing campaigns mounted by the anti-vaccination movement by legislating to protect immunity in large numbers and to create incentives for vaccine-resistant or vaccine-hesitant parents to vaccinate their children.
Currently, it remains the responsibility of parents to make the decision on whether to vaccinate their child. Despite this, the court is able to interfere, commonly by way of the parens patriae jurisdiction, in order to protect the health of a child. Accordingly, courts apply the principle of the best interests of the child in reaching a decision either to vaccinate or not to vaccinate.
An examination of the case law reveals that this is a dilemma the courts have repeatedly encountered. Notably, Australian family law courts have adopted a relatively consistent legal position in these cases by upholding that vaccination is usually in children’s best interests and rejecting anti-vaccination arguments. A recent study analysing the 13 family law cases since 2002, in which immunisation was the sole or a major issue in dispute, found that only two of the cases saw the court refuse to make an order supporting immunisation of the child.
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. Thus, it will ordinarily be in the best interests of a child that parents are obliged to do everything necessary to ensure that children receive vaccinations so that they are fully vaccinated with orthodox immunisation. Accordingly, Justice Osborn’s decision that it was within the legislative mandate of a Children’s Court Magistrate to order vaccination of children when they were in State care under an IAO, was in keeping with the application of the best interests principle by the major authorities that preceded it.
IV ALTERNATIVES TO THE BEST INTERESTS PRINCIPLE
The best interests principle is undoubtedly the bedrock of all laws regarding child protection and children’s rights. However, its efficacy to bring about protective outcomes for children has been questioned by some legal academics. This thesis will now proceed to consider three key inefficacies identified in the best interests principle. It will then propose three alternative frameworks to the best interests principle that may redress each of these issues.
Although ZD applied the best interests principle in line with previous vaccination case law, this thesis will identify each of the shortcomings in the judgment, and apply the alternative frameworks to the facts of the case to determine whether a different approach would have better served the children involved in the proceedings.
A Best Interests: Covertly Serving the Interests of Parents?
The best interests principle has been criticised for serving children poorly. The principle, presumed to determine and protect the interests of children, has been argued to be so vague that it can be, and sometimes has been, used to subjugate children’s interests to the interests of the disputing adults. This subjugation is exacerbated when the courts recognise parents as having rights with respect to their children rather than interests. 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?
1 Parental Rights or Interests?
The concept of parental rights is not a novel one, with a string of case law couching parents’ interests in the language of rights. In J v Lieschke, the only High Court case examining child protection law in any detail, Deane J recognised the fundamental nature of parents’ rights as the natural guardians of a child. This contention is reinforced by the most comprehensive study of decisions in child protection cases brought before the Melbourne Children’s Court:
Magistrates were clear about the importance of the family for the child and that parents’ rights had to be observed when the child protection service was seeking to intervene in a family’s life …. This meant at times that the right of a parent to retain their child was more strongly defended than the right of the child to have their interests treated as the court’s primary consideration.
Whilst the only current State-based human rights legislation, found in Victoria and ACT, does not explicitly confer rights on parents, by virtue of being members of the broadly defined family unit, parents may be entitled to some rights. In Victoria, the Charterprovides that ‘families are the fundamental group unit of society and are entitled to be protected by society and the State’. ‘Families’ is not defined in the Charter. However, the Explanatory Memorandum states that the term ‘families’ is to be given ‘a meaning that recognises the diversity of families that live in Victoria’. Victorian case law has also affirmed that this term is to be ‘construed broadly’. The ACT Act has similarly noted that families ‘has a broad meaning’.
Although parental rights are recognised in child protection proceedings, and, potentially, under the State-based human rights legislation, their validity is unclear. For instance, the National Framework for Protecting Australia’s Children states that children ‘have the right to be safe and to receive loving care and support’, while parents ‘have the primary responsibility for raising their children, and ensuring that these rights are upheld’. Walsh contends this is ‘symbolically important as it implies that today parents are not considered “rights-bearers” in the same way that children are’.
Moreover, the rights of parents are not expressly recognised in child protection legislation in the various States and Territories. For instance, section 10(3) of the CYFA, which contains the best interests principles proscribes that consideration is to be given to the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society, and the need to strengthen, preserve and promote positive relationships between the child and the child’s parents. These provisions pertain to families having rights as the fundamental group unit of society rather than to parents having rights as natural guardians. If anything, these provisions are ‘child-centric’. That is, they must be considered when deciding what is in the child’s best interests.
In fact, it seems that the weight of authority is in favour of recognising parental ties as interests rather than rights. These interests are an important factor that are weighed in the balance and accommodated, so far as is possible in the court’s final decision. By doing so, the best interests principle operates to balance the interests of both the child and the child’s parents in such a way as will promote the welfare of the child.
It seems highly unlikely that future cases will separate parents’ interests from the best interests principle. This is particularly true in the context of medical treatment for children. Parents have a vested interest with respect to significant and irreversible medical decisions concerning their children. As such, the courts are likely to consider parental interests regarding medical decisions for their children when applying the best interests principle. 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.
2 Recognition of Parental Rights and Interests in ZD
In ZD, counsel for both parties advanced submissions using the Charter. Counsel for the appellant relied on section 17(1) which provides for protection of families as the fundamental group unit of society. Although Justice Osborn found that the Charter could not be relied upon, 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’.
This may be a valid interpretation of section 17(1), particularly as a 2011 Victorian Supreme Court case has recognised that the rights of parents and other family members may be engaged in child protection proceedings by way of the Charter. Nonetheless, Justice Osborn ultimately left open the question of whether parental rights should be recognised under the Charter. As such, no clear legislative or common law source for parental rights exists. This is problematic, as without confirmation as to parents’ legal standing, some judges may give greater deference to parental wishes when applying the best interests principle, because of the perception that parents have rights rather than interests. Without a source for this consideration, judicial reasoning may not be conducted objectively. This may result in reasoning that is not transparent and, thus, arguably subjective and not in the child’s best interests.
If Justice Osborn had perceived of the parents’ involvement in the decision-making as an interest rather than a right, such an interest could be considered as a factor to be weighed in the application of the best interests principle. Although parental interests are not specifically provided for by the CYFA, his Honour could rely on section 10(3)(a) and (b) which provide for the interests of the family unit. His Honour could also have had regard to parental interests under section 10(3)(r) which permits ‘any other relevant consideration’. However, without a clear source, this runs the risk of subjugating the children’s interests to the parents’ interests.
Irrespective of the absence of an authority or source of power for parental rights or interests, Justice Osborn acknowledged that he would have limited any ability for the parents to exercise decision-making power in the circumstances. Therefore, it is unlikely that the outcome of ZD would have been different had there been a clear source for parental rights or interests. However, it may have clarified the factors considered in the court’s application of the best interests principle.
B Best Interests: Indeterminate in Practice?
Since Robert Mnookin’s seminal critique of the best interests standard in 1975, many others have agreed with his central criticism that the standard proves indeterminate in practice. As a result, some suggest the principle produces widely discrepant, even contradictory results in child protection proceedings. Given the inability of courts to reach a consensus about the precise meaning of the best interests phrase, how useful is it to continue to use this as the overarching framework in child protection law? Should a more measurable standard be used?
1 Alternative: The Least Detrimental Alternative
The standard of the best interests of the child was popularised by Goldstein, Freud and Solnit. However, in the same text, the authors indicated a preference for the phrase of the ‘least detrimental alternative’ (‘LDA’). The fundamental reason for this preference was the inherent vagueness of the best interests phrase in circumstances that demanded a pragmatic approach. 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. The LDA would also serve to remind decision-makers that their task is to salvage as much as possible of an unsatisfactory situation. As stated by Goldstein and his co-authors, ‘It should reduce the likelihood of their becoming enmeshed in the hope and magic associated with “best”, which often mistakenly leads them into believing that they have greater power for doing “good” than “bad”’.
The concept of ‘available alternatives’ would bring into focus how limited the capacity of decision-makers is to make valid predictions and how limited the choices generally open to them are for helping a child in trouble. Ultimately, the LDA could add a much-needed dose of reality and pragmatism to the decision-making process in child protection matters.
Removing a child from parental care, even if only temporarily as prescribed by a condition of an IAO, is an act that creates trauma for a child, no matter how abused and neglected the child may have been while in parental care. Subjecting the child to court-ordered medical treatment would only compound this distress. Given this harsh reality, the adoption of the LDA may provide for a more careful and measured weighing of the evidence by Australian Children’s Courts about the likely outcomes of any proposed medical treatment for a child.
2 Applying the Least Detrimental Alternative to ZD
In ZD, Justice Osborn recognised the indeterminate and flexible nature of the best interests principle. His Honour applied the best interests standard and the additional principles set out at section 10(3) of the CYFA. However, in doing so, and probably largely due to the fact that the appeal turned on whether the Magistrate had acted ultra vires, Justice Osborn did not undertake a careful weighing of the alternatives, to vaccinate or not to vaccinate, in reaching his decision. The extracts from the Magistrate’s decision also do not indicate that such an analysis was conducted at first instance. This raises the question of whether a more pragmatic and measured approach, in the form of the LDA, would have produced a more desirable outcome.
This thesis will apply the LDA to ZD by embarking on its own weighing of the facts. The two alternatives in ZD were simple: to vaccinate the children or not to vaccinate the children. An application of the LDA would require the court to focus on how well each of the two alternatives suited the children’s’ needs. This thesis contends that such a comparison should not be a stringent, binary process. Rather, it should consist of a relative approach, which is not concerned solely by whether one alternative is better or worse than the other, but instead by how much better or worse outcome each of the two alternatives produces.
On the one hand, vaccination would confer multiple advantages. Following popular medical opinion, it would provide numerous health benefits for the children, and, at its most extreme, could prove to be lifesaving. As the UNCROC recognises the right of a child to the enjoyment of the highest attainable standard of health, vaccinating children would be in furtherance of this right. The advantages of vaccinating children would also have flow-on effects. 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. Vaccination would also facilitate the children’s ability to attend school. Without it they would be subject to being sent home in the event of any perceived threat that they may contract measles or other diseases against which vaccination guards. More broadly, it would also be in the community’s best interests that children are vaccinated. Vaccination promotes herd immunity; in the school setting this would assist in the protection of children against the outbreak and spread of disease.
On the other hand, vaccinating children could have disadvantages. Going against the deeply held values of the children’s biological parents may further disrupt the children’s relationship with their parents by ordering them to defy the values of the family unit. In doing so, vaccination has the potential to sever the children’s familial identification. Further, provided that parents have rights to make medical decisions for their children, overriding the parents’ wishes to leave their children unvaccinated could be encroaching on those rights, particularly where the parents disagree and have opposing views. There is also the potential that, owing to the young age of the children and their inability to express their wishes, vaccinating the children may be infringing their rights.Finally, an argument might be mounted that vaccines can cause serious and sometimes fatal side effects.However, the scientific support for such a conclusion is questionable at best.
The above analysis demonstrates that each of the alternatives is not equally suitable in terms of the children’s most immediate predictable developmental needs. That is, while vaccination may have some disadvantages, on balance, these are not significant enough to outweigh the various advantages of vaccination. Thus, weighing up the two alternatives – to vaccinate or not to vaccinate – this thesis comes to the view that vaccination would be the course that, prima facie, is least detrimental to the children. In other words, Justice Osborn’s decision, and, consequently, the reasoning of the Children’s Court Magistrate, would have been the least detrimental alternative as described by Goldstein and his co-authors.
C Best Interests: Potential for Judicial Subjectivity?
It has been observed that, as the best interests principle provides no clarifying definition, its application merely reflects the values and attitudes of the decision-maker. The potential for judicial subjectivity is a cause for concern – does the best interests framework give legal sanction to the moral preferences and prejudices of those involved in the child protection decision-making process owing to the undefined nature of the principle? If so, would a model which is guided by a clearly outlined set of children’s rights be a more effective framework for eliminating potential judicial predilections and promoting the best interests of the child?
1 Alternative: The Substantive Rights Model
Consensus with respect to the understanding of children’s rights is far from universal Some, such as United States scholar Guggenheim, regard it as a confused concept that ‘has less substantive content and is less coherent than many would suppose’. 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’. This thesis contends that Australian judges should accept a vision more in line with that of Fortin’s, which considers children’s rights as a mechanism to improve decision-making in matters concerning children. Such a view is reinforced by rapidly growing academic literature which emphasises the need for judges to take children’s rights seriously.
A judge’s task, particularly with respect to matters involving children, is not simply to apply existing legal principles in resolving a dispute. Owing to the very nature of the best interests principle, they must also engage in ‘moral reasoning about some or all of the issues proposed’. It is within this context that a judge may have the scope to apply elements of a children’s rights model. Incorporating a rights-based approach would require focusing much more systematically on the attitude adopted by the courts in relation to children and providing a clear model that could be implemented.
This thesis adopts the substantive-rights model proposed by Australian academic John Tobin. Tobin develops his model by classifying it into a series of approaches. Those approaches which tend to overlook, marginalise or misappropriate children’s rights are classified into ‘invisible’, ‘incidental’, ‘selective’, ‘rhetorical’ and ‘superficial’ rights categories. By contrast, those decisions which are consistent with the model of children’s rights above are considered to employ a ‘substantive’ rights approach to matters concerning children.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. As this thesis is contemplating the application of the rights-based model in a domestic context, it would add to this model the need to consider any domestic legislative provisions that seek to inform or guide an assessment of a child’s best interests.
Owing to the inherently intrusive nature of court-ordered medical procedures, rights of the individual being treated are frequently a factor in proceedings. It follows that a child who is subjected to medical treatment should also have his or her rights considered by the court in the process of making such an order Such an approach would align with attempts by Australian courts to interpret cases consistently with the UNCROC. As such, it is worth considering the implementation of a substantive rights model that would allow the court to recognise and consider the rights of a child when making such physically invasive orders in the child protection context.
2 Applying the Substantive Rights Model to ZD
Applying Tobin’s substantive rights model to the case of ZD demonstrates that the rights of the children were not entirely ignored in favour of judicial predilections. In determining the scope of section 263(7) of the CYFA some of the children’s rights were raised. 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, and the right of the children to the highest attainable standard of health as proposed by the UNCROC, were relevant considerations in determining the best interests of the children. The children’s rights under the Charter were also noted.
However, the treatment of the children’s rights in ZD would be regarded as what Tobin would classify as ‘incidental’. The references to the various human rights instruments were not developed any further. Moreover, the judgment did not offer a detailed analysis as to how a right to receive medical treatment is, or should be, a relevant consideration in the application of the best interests principle. Rather, both the Magistrate and Justice Osborn preferred to base their respective decisions to make orders to vaccinate children on the premise that the CYFA allows a wide discretion as to what matters may be taken into account in determining what is in the best interests of the child.
ZD demonstrates that frequently the deference given to the best interests of the child does not reflect a rights-based understanding of the best interests principle. 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. 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 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.
Although a rights-based approach would prima facie have required State intervention on the facts of the case, its adoption would have carried two significant consequences. Firstly, the children would have been identified much more clearly as subjects entitled to the protection of their individual rights as opposed to passive objects in a dispute between their parents and the State. 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.
Although neither judgment was wholly compatible with the substantive rights model, the case for vaccination was overwhelming premised on the children’s right to medical treatment as conferred by the domestic and international legislative instruments. Thus, regardless of the approach adopted, the outcome would have been the same.