A ‘ Problem Child’ A CASE Study OF THE BEST Interests Principle IN Child Protection LAW Using ZD V Secretary TO THE Department OF Health AND Human Services [2017 ] VSC 806 PDF

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A ‘PROBLEM CHILD’? A CASE STUDY OF THE BEST INTERESTS PRINCIPLE IN CHILD PROTECTION LAW USING ZD V SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES [2017] VSC 806.docx...

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A ‘PROBLEM CHILD’? A CASE STUDY OF THE BEST INTERESTS PRINCIPLE IN CHILD PROTECTION LAW USING ZD V SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES [2017] VSC 806

INTRODUCTION 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’....