Policing parenting: is the Family Court going to punish you for having a drink?

Sascha Callaghan, University of Sydney

News outlets have pounced on a Family Court “order” for parents of a six-year-old boy to not smoke around the child and to limit their alcohol consumption while caring for him. Readers commented that the case represents an unacceptable “intervention by the courts into the personal space of the individual”, and that it was an attempt at “social engineering”.

The idea of a court intervening in family life to prevent what might seem like fairly ordinary activities, such as occasional tobacco smoking or having a glass of wine or two, might seem like evidence of an overreaching “nanny state”. And perhaps it would be if that’s actually what happened – but it didn’t.

It is true, though, that the “right to parent” according to one’s own values and proclivities isn’t actually unfettered. The state can and will intervene in family life in various circumstances.

A definite jurisdiction

State Supreme Courts have powers to make orders under their protective jurisdiction to allow important medical treatment to go ahead if parents won’t consent, for instance. The NSW Supreme Court did exactly that in a 2013 case where a Jehovah’s Witness parent refused a life-saving blood transfusion on behalf of their child.

State agencies can also intercede in family life under child protection laws when a child is at risk of significant harm. This kind of coercive intervention is reserved for serious cases where the child’s basic needs are not being met. And it generally requires much more than a parent who smokes or drinks too much from time to time to trigger intervention.

But child protection laws have also been invoked when parents of a severely overweight boy didn’t go to hospital for treatment, or appropriately manage his diet (the ten-year-old boy later died from heart failure associated with obesity). And when a father, who believed HIV was an invention of pharmaceutical companies, refused to give his child the antiretroviral medication prescribed by doctors.

Not everyone will agree on the limits drawn around decisions parents are allowed to make. But most will agree that the public interest in protecting children means limits must be placed somewhere. And “risk of significant harm” doesn’t seem like a bad starting point.

In addition to child protection laws, the Family Court will intervene in the parenting of children when asked to do so by parents who cannot agree on the relevant decisions themselves. In settling these disputes, the guiding principle is that the court will act to protect the “best interests of children”.

But how do courts interpret this rather wide concept, and where do the limits of personal parental prerogatives lie when a court tries to strike a balance between the strongly held views of parents who bitterly disagree?

The particular case

In the case that has provoked so much comment, the Family Court decided that despite the fact the child’s mother was his primary carer and was “utterly dedicated to the child’s needs”, it would be in his best interests to live with his father.

The Family Court will make parenting decisions when asked to do so by parents who can’t agree on the decisions themselves.
from shutterstock.com

The orders were influenced by the mother’s preference for the advice of her naturopath over an accredited medical practitioner, which the court found was to the detriment of the child; her “conscientious objection to vaccination”; and her “clear and unwavering belief that the child obtains nothing from an ongoing relationship with his father”.

The father, on the other hand, appeared to the court to have a better view of the child’s medical needs and was “the parent more likely to support [the child] in his relationship with his mother”.

Among the 45 orders the court made were two proposed by the mother – that both parents be “restrained from smoking in the presence of the child” and that they will refrain from consuming alcohol “to excess”, or at least to the point of being unable to drive, while the child is in their care. The father agreed to these, in a suite of orders in which his interests mostly prevailed.

These are known as “consent orders” – and they’re quite different to coercive interventions under child protection laws. In fact, health-related agreements are becoming a common feature of consent orders in a culture that increasingly values health and wellness, and in which many parents are likely to want assurances from the other that their child will be in a “healthy” environment when not in their care.

These kinds of concessions are negotiated in families every day of the week – “take Harry to the physio”, or “please can we not have pizza again because last time Sam got sick”. In this sense, consent orders reflect familiar family compromises and the parents’ own values – rather than an out-of-control nanny state imposing orders on passive parents.

It’s just that these fairly unremarkable agreements have been written down and stamped by the court because goodwill has evaporated and parents no longer trust each other to honour everyday deals.

The long arm of the law?

Indeed, the most interesting aspect of this case is perhaps not the agreement by both parents not to smoke in front of their child or get so drunk that they can’t drive, but that in determining a child’s best interests, the overriding priority for the court was securing “the benefit to the child of having a meaningful relationship with both of the child’s parents”.

To many people the idea that a father who had never been in a stable relationship with the mother and had little previous involvement with him should be entitled to a relationship with the child to the extent that his mother’s role as primary carer was lost, would seem ludicrous. But the Family Law Act takes the position that a relationship with both parents will, in the absence of risk of harm to the child, be considered paramount.

With regard to smoking and drinking, there was agreement between the parents with the imprimatur of the court – rather than an order being “imposed”. The most serious issue that remained in dispute was the child’s right to a relationship with both his parents – and this was where the court really did impose the values of the Family Law Act.

Otherwise, unilateral state intervention is reserved for much more serious cases where significant harm is in the offing. So, you can still have a smoko while your child is at home without fear of being touched by the long arm of the law.

The Conversation

Sascha Callaghan is Lecturer in Health Law & Bioethics at University of Sydney.

This article was originally published on The Conversation.
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Refusing medical treatment in pregnancy: what does the law say?

The  recent report of a pregnant woman who refused life-saving cancer treatment whilst heavily pregnant has  reignited debate within the community about how we should resolve conflicts between mothers rights and those of her unborn child. The woman had refused  blood products that were required to give her  lifesaving chemotherapy because of her Jehovah’s Witness faith, and she and her fetus died in hospital when she was 28 weeks pregnant.

From a legal point of view this case engages two well-established principles: the first is that an adult who has mental capacity, may refuse medical treatment for any reason whatsoever, even if the consequences are that she will die. The courts are clear that all medical treatment is optional, and when it comes to decisions about our own life and health,  our wishes will be respected.  The second is that a fetus is not a legal person with rights of its own, until it is born.  This  is not to say that the law does not protect fetuses at all.  Abortion is still a criminal offence in New South Wales and it is grievous bodily harm to destroy the fetus of a pregnant woman whether or not the woman herself is injured –  punishable by up to 20 years in jail.  Children can also sue people who have caused them injury in the womb after they are born.  However it does mean that whilst a fetus is still in the belly of its mother, the mother’s right to make decisions about her own body will prevail.

In the wake of the tragedy of the preventable death of a young woman and her unborn child, some have suggested that we would be better off as a community if the law required  pregnant women to be forced to have medical treatment in some circumstances. Some might think that women  should be required to make particular life choices more generally, wherever fetal health is involved.  But all of these suggestions are bound for unintended consequences – and they all deserve careful thought.

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Should people with acute mental suffering be allowed to die?

Sascha Callaghan, University of Sydney

Euthanasia advocates often assert a distinction between dying with dignity (good) and suicide (bad), drawing on the community’s twin commitment to both permitting euthanasia in some circumstances, and preventing suicide. But rather than being distinct, euthanasia and suicide are points on a continuum of death decisions, that overlap uncomfortably where intractable mental suffering is asserted as grounds for assisted dying.

The tension between the two was played out this week in the Northern Territory, where the local Civil and Administrative Tribunal is considering whether to uphold the Medical Board of Australia’s suspension of Philip Nitschke’s medical licence after a three-day hearing.

The suspension came after Nitschke discussed assisted suicide with 45-year-old Perth man Nigel Brayley even though he knew Brayley did not have a terminal illness. Brayley reportedly told Nitschke in an email that he was “suffering” in the sense that he was deeply unhappy in his life. Nitschke did not refer to him to a psychiatrist or offer any other help.

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How to draw the line between ‘good’ and ‘bad’ reasons to die

Sascha Callaghan, University of Sydney

A Senate inquiry into legalising voluntary euthanasia for terminally ill people has recommended a conscience vote on the proposed bill after technical matters, such as what constitutes a “terminal illness”, are clarified.

While this is an important step forward in grappling with the idea of the “right to die”, drawing a line at terminal illness for this purpose will be difficult. What’s more, restricting the right to die to people who are terminally ill is very different to what most of us think of as justifiable euthanasia.

Research shows more than 82% of Australians support voluntary euthanasia where “a hopelessly ill patient, experiencing unrelievable suffering, with absolutely no chance of recovering” asks for help to end their life. This description covers terminal illnesses as well as other incurable conditions causing great suffering in which death may not be imminent.

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