Understanding Parental Responsibility towards Children

Monday 29th of July 2024

Legal Studies

Syllabus Topic

Option 3: Family

The nature of family law

legal rights and obligations of parents and children

Introduction

In New South Wales (NSW), the legal framework governing the rights and responsibilities of parents and children aims to ensure the well-being, safety, and development of children.

Providing Adequate Care

Parents in NSW are required to provide adequate food, shelter, protection from abuse or neglect, access to education, discipline, and medical treatment. The Children and Young Persons (Care and Protection) Act 1998 (NSW) mandates that failure to meet these basic requirements may result in criminal prosecution. Neglect is considered a criminal offence under section 228 of this Act, with fines up to $22,000, and under section 43 of the Crimes Act 1900 (NSW), which can result in imprisonment for up to 5 years.

Education

The Education Act 1990 (NSW), amended in 2009, requires children to attend an educational facility from age 6 until 17. For those who have completed Year 10 but are not yet 17, they must engage in some form of education, training, or employment. Failure to enrol a child in school or provide access to education is a criminal offence, carrying fines up to $5,500. Section 22 of the Education Act also allows for fines or community service for children over 15 who fail to attend school regularly.

Discipline

Under section 61 of the Crimes Act 1900 (NSW), parents have the right to discipline their child using physical force, provided it is reasonable. Factors such as the child’s age, health, and the nature of the misbehaviour are considered. However, recent research highlights the need for urgent policy reform in ensuring more strict guidelines around notions of “reasonable discipline”, following a study exposing high incidence of harm caused by child abuse and neglect to Australian children.

Medical Treatment

Parents are responsible for ensuring their child receives appropriate medical and dental care. Consent is required before a doctor can administer treatment:

For children under 14, a parent or guardian must provide consent.
For those aged 14 to 16, either the child’s or parent’s consent is needed.
Young people aged 16 or 17 must consent to their own medical treatment under section 49 of the Minors (Property and Contracts) Act 1970 (NSW).

If parents refuse treatment on grounds such as religious beliefs, a court can authorize necessary medical care. The Children and Young Persons (Care and Protection) Act 1998 (NSW) defines a child as someone under 16 years and a young person as one aged 16 or 17.

Separated Parental Obligations

The Family Law Act 1975 (Cth) establishes that the “best interests of the child” is the paramount consideration for courts when determining parental responsibilities. Section 60B(2) of the Act outlines the principles underlying the best interests of the child:

The child’s right to know and be cared for by both parents.
The right to spend time and communicate regularly with both parents and other significant people.
The joint responsibility of parents for the child’s care, welfare, and development.
The need for parents to agree on future parenting arrangements.
The right of children to enjoy their culture.

The Family Law Reform Act 1995 (Cth) and the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) emphasize equal responsibility between parents and the child’s right to meaningful family relationships, rather than any parent’s right to have the child live with them. The Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1989 (Cth) establish an administrative system for enforcing maintenance orders and calculating child support.

International Law

International conventions reflect similar principles:

Convention on the Rights of the Child (CROC): Article 3(1) asserts that the best interests of the child should be a primary consideration in all actions concerning children. Articles 9(1) and (3) ensure that children are not separated from their parents against their will and maintain personal relations with both parents.
International Covenant on Civil and Political Rights (ICCPR): Article 23(4) mandates equal rights and responsibilities of spouses regarding children, including during dissolution of marriage.
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): Articles 5(b) and 16(d) emphasize the shared responsibility of parents in child-rearing and the importance of the child's interests.