The Extent to which Family Law Recognizes Children's Rights - Essay Sample

Introduction

Basically, parents have a central role to play on their children and family laws are key legal concepts that should describe the legal duties and rights of children. However, there has been an expressed concern in some quarters that a treaty which purposes on children's rights essentially distinguishes children as separate and discrete entities from their family, hence reducing the capacity of parents in offering the right protection and care. Due to this, the paper critically assesses statutes and case law to which the family law recognizes the rights of children.

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The 1975 Act on family law is one law that handles parent-child legal matters internationally and has some policies that account for post-separation services. The act purposes of children's rights and parent's responsibilities towards their children. It ensures that every child is enjoying a purposeful relationship with each of the parents and is sheltered from any harm. Under the Act, the presumption of it is that both parents have equal parental accountability including a role of making decisions on issues like where the child goes to school or on some major issues of health. However, this does not apply when the parent is involved in child abuse or family violence. If also it isn't in the best interest of the child, the assumption does not apply.

According to the act, time spent on the child depends on the arrangement agreed by both parents or on decisions made by the court on equal time that is in the child's best interest. If there are issues like separation of the parents, the Family Law Act 1975 requires the parents to use the Family Dispute Resolution which can help them in solving their disputes. Before they attend the court, they are also required to take part in family dispute resolution unless there is an application of exceptional like family violence and child abuse. "The act provides contract services for the children thus helping children of separated parents to have contact with their both parent especially when there are concerns like safety". Additionally, the Family Law Act 1975 provides support for children after separation through community-based organizations thus enabling such children to deal with the issue of breakdown from the relationship of their parents.

Legislation Amendment Act 2011 strengthened its focus so as to protect a child from violence and abuse. Despite that, its object as stated at the Convection of UN on the Child's right (UNCROC) is to provide an effect to the Convention on child's Right done at New York. This UNCROC is an object of Part VII of the Act that concerns the arrangements of a child. Also, it is tagged as the 'additional object' that list the factors that assist courts in determining what outcome for the dispute is best for the best of interest of a child. Article 17 of the constitution under Human Rights looks at how the committee on the Rights of the Child (CRC) reaffirms the respect principle for the established family autonomy in human right treaties. It recognizes the family primacy with respect to children and states the rights and responsibilities that parents have towards their children.

The article recognizes that children have a right not only to be cared for by their parents but also a right of knowing their birth or genetic parents since it shows the significance of having a sense of attachment and belonging which every child should have. The article also allows identity preservation like the right to family relations with no lawful interference. The family relation recognizes the principle that the identity of children is more of knowing their parents. The article also shows that parents should not take children as property, but rather as independent entities who can be responsible for their own lives. Although this creates tension among parents, it is the right of a child to be allowed to make their own decisions as they grow older.

In Gillick, lord Scarman-competence statute, the rights of parents only exist on the purpose of discharging their roles to children. This is an indication that the rights of parents are based on their duties and exist because they are needed for personal protection and child property as well as in promoting the interest of children. Parents have their rights and their responsibility but also children have a right to a responsible parent. Parental rights exist in two forms; parent-centered and child-centered. Although not all parental rights exist for the sake of children, Gilmore argues that child-centered rights should be part of parental rights so as to enable them to carry out their duties like clothing their children and maintaining their health. However, parent-centered rights are vindicated not because they certainly enhance the child's welfare, but because they benefit the parent and show no harm to the child. The distinction of this is that there are areas where parenting has no discretion like starving their children since a child must be fed adequately and there are areas where parenting has no state-approved standard like deciding on what their children will wear.

Under Family Act in R (On Williamson's Application) v State Secretary for Education and Employment, Baroness Hale highlighted that every child has the right to be appropriately cared for and brought up so as they can fulfill their prospective and take part in their community and this is part of the duty of parents. However, parents should be permitted a large autonomy measure in the way they emancipate their roles since children are not children of the state and the free society should respect the differences of individuals. However, the responsibility of parents is making sure children do not commit crimes, are not obese and are attending school. In section 3 of Children Act 1989, the responsibility of the parent is the same as duties, rights, and authority which by law a child-parent has in connection to the property of the child. Based on the Act, the parent can only make decisions based on various ways and one of them is criminal law which states that it is an offense to assault a child. Although it is essential, it restricts a parent's power in administering corporal punishment. Another way is that local authority power in taking a child into care restricts the parent in making any choices regarding the upbringing of the child.

M v M (Parental responsibility) irrespective of the child's love and commitment, the father has no parental accountability since he lacks the mental capacity of making choices on behalf of the child. In Re M (Sperm Donor Father), "the court orders contact with a father who doesn't know his child and suggests that after knowing the child, they might award him parental responsibility". In Re G (Parental Responsibility Order), if the child born is out of 'one-night stand' and the father had no association with the child born, the court can grant the suspended father parental responsibility if only the mother failed to offer him with information on health and education of the child. Although this is a decision to be made by the court since the suspended parental responsibility is not under the Children Act 1989. Due to these highlights, there is real tension in the case law in outlining if the responsibility of the parents is on real decision making power or more of symbolic value like acknowledging the commitment of the father to the child.

The welfare principle is another concept of the family statute that relates to children and it shows that no decision can be made if at all it affects the child's welfare. The statute of this welfare principle found in Children Act 1989 in section 1 (1) states that the child's welfare shall be the paramount contemplation of the court especially when questions arise in respect of child upbringing or application of any income arising from it. J and another v C and others AC 668 states that the paramountcy of welfare of a child should be balanced against the right of a parent in bringing up their own child. Although it is possible for parents to bring up their children based on the best interest of a child, the best is for the child to stay with his foster parents. However, this welfare should not be measured by material wealth and physical comfort but key principles should be considered in making the decision of the upbringing of the child. Based on Children Act 1989, the key principle to be considered is a delay in making choices of a child if his/her welfare is detrimental and when there is a presumption that the non-resident parent is engaged in the life of a child (s 1(2).

Children and medical law is another family law that recognizes the rights of children. Often, disputes arise between children and adults base on medical treatment. Unless the court forbids the carrying out of treatment, this law allows a doctor to issue treatment to a child if only the child is proficient and approves the treatment. Also, the treatment can be conducted if only the court sees it lawful, if there is approval of the parent and if only there is an application of necessity defense. However, if the doctor does not want to carry the treatment, the court cannot force. The law starts when a clinician lays a hand on a patient as he commits a battery that is a criminal offense unless there is a defense.

There are various ways in which a defense is provided and according to section 8(1) of the Family Law Act 1969, the approval of a minor who has reached 16 years of age to any treatment regarding dental, surgery or medical shall be as efficient as it could have been if he/she was full age. Also, consent from parent or guardian shall not be given if the minor by virtue has given effective approval to any approval. Thus, this is an indication that children of 16 or 17 years of age have legal effect to any treatment unless they are said to be incompetent. Conflict arises when the parents consent about the treatment but the 16 or 17 years age child refuses. From Re W (A minor) (Medical Treatment: Jurisdiction of the Court), a clinician relies on the consent of the parent irrespective of the child opposition. However, the clinician should carry out the treatment if he/she believes that it is for the best interest of the child. In Re W, any child approaching the adult stage has power over their own choices especially those that concern medical treatment. Therefore, it is in the best interest of that child to make an informed decision so long as they are of sufficient age and the court should respect that without overriding the decision on the patient. Irrespective of the doctor wishing to carry out the treatment based on the consent of the parents, the doctor should ensure he/she has authorization from the court in order to do so.

In Re C (Detention: Medical Treatment) where the 16 years old child suffer anorexia nervosa after treatment, the child should remain as a patient in the hospital unless discharged by the clinician or unless the court orders her discharge. This power of the court under the inherent jurisdiction is reasonable since it detains the patient for the sake of treatment. On the other hand, the law takes charge when the child is below 16 years since the child is competent to give approval. Act 2005 of Mental Capacity carries out tests in relation to adults and not children. However, the court may pay attention to the Act since section 2 of it; it allows the court to do so if the individual has no capacity of making the decision. Also, section 3(1) of the Mental Capacity Act 2005 illustrates that one is unable to make a decision if he/she is unable.

The parental right yields to the right of a child in making decisions when the child acquires adequate compreh...