Supreme Court clarifies parental rights in child protection case

Supreme Court clarifies parental rights in child protection case

Friday, 22 December 2017

We welcome a Supreme Court decision today which clarifies when the Children’s Court can allow the government to override the wishes of parents in the early stages of child protection matters.

We represented a mother who opposed a condition made by the Children’s Court for her three children to be immunised, while they were under the temporary care of the Department of Health and Human Services (DHHS).

The Supreme Court has found the Children’s Court had the power to include a condition for vaccination of the children as part of a temporary accommodation order.

But Justice Robert Osborn also commended Victoria Legal Aid for running the case saying it raised an underlying issue of principle which affects many members of the public, and goes beyond the issue of immunisation.

The children in this case are subject to an interim accommodation order (IAO) and no decision has been made about their long-term care.

Executive Director Family, Youth and Children’s Law, Nicole Rich said: ‘This case was never about immunisation and we respect the public health imperative for children to be immunised.’

‘The decision confirms that the government cannot, on its own, override parents’ wishes on major long-term decisions for children in its care on temporary orders, before any court decision has been made about whether it is unsafe to return the children to their parents.

‘It was important to test whether the government could ask the Children’s Court to give it this power in individual cases,” Ms Rich said.

‘If we didn't run this case, this legal question was going to be asked again and again in individual cases, which is not in the interests of taxpayers, the department, children or the courts.'

The Supreme Court has clarified that the Children’s Court does have a broad power to set any conditions on IAOs that relate to the basis on which children are accommodated, so long as they are in the best interests of those children.

‘Thousands of interim accommodation orders are made each year and this one case has resolved the issue. This clarity is extremely helpful as it means children, parents and the government now understand they can ask the court for broad conditions tailored to the needs of the children in individual cases.'

‘It was also clarified that this power is not unlimited. If the Children’s Court imposes a disproportionate condition in future, a further appeal to the Supreme Court is an important safeguard available for children and families,' Ms Rich said.

Many other families are in the child protection system at this early stage when the safety concerns for a child have not been determined. In 2014-15 the Children's Court made over 8,000 IAOs and considered extending another 15,540 IAOs.

The court issues an IAO to say where the child must live until the next court date.

Victoria Legal Aid arranges legal assistance for most of the families who are dealing with child protection cases in the Children’s Court of Victoria, including to the children involved.  

Media enquiries

Executive Director Family, Youth and Children's Law, Nicole Rich is available for comment on Friday 22 December.

If you have a media enquiry please contact Senior Media Advisor Naomi Woodley on (03) 9280 3882 or 0409 281 304 or email naomi.woodley@vla.vic.gov.au

Find out more about this appeal

Find out more about this appeal by reading the Explainer – Supreme Court action on court powers and parental rights in child protection matters.

How we can help

Find out how you can get help with child protection. You can also find out more about:

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