PARENS PATRIAE

• Author: Anthony Graham
• Date: 01 April 1994
• DOI: http://doi.org/10.1111/j.174-1617.1994.tb00338.x
• Published date: 01 April 1994

PARENS PATRIAE

Past, Present, and Future

The Hon. Justice Anthony Graham

This article discusses the role of the court in protecting children

in

Australia

and

provides a

means for compm’ng this process

in

other jurisdictions. It addresses the direrent perspectives

of

mental health

and

legal professionals

in

obtaining insight into case

law

and

precedent in the

English-speaking countries.

1.

INTRODUCTION

The subject of this article is the parens patriae jurisdiction and its ramifi-

cations. I perhaps best can introduce it by telling of a stark example

of

the

sort of case within the jurisdiction that came before me earlier

this

year.

I

was

sitting in what can be described as the practice court of the Family

Court, where

various

interlocutory and interim applications come before the

court. For nonlawyers, the judge simply sits there and waits for people to

make an application and then hears those applications, often forthwith. The

judge keeps a close eye on what

is

going on and is observant of comings and

goings, and quite often cases will actually be initiated on the spot.

In

this

case a reasonably senior member

of

counsel,

an

experienced

insurance solicitor, and a large number

of

people walked into the court and

sought to be heard.

It

turned out that the solicitor represented a large Victorian

hospital and a number

of

medical practitioners, including medical specialists.

The barrister represented the Health

and

Community Services Department.

There were other people in court, including the parents of the child in

question. The child was the subject

of

a protection order. The application had

been initiated on what we call a

Form

8,

and the nature

of

the application

was

the director of Health and Community Services be authorized to recommend

andor ensure that the infant not be subjected to mechanically assisted

ventilation or respiration or cardiopulmonary resuscitation. An order had

been made earlier in

1993,

extending a protection order for the child. The

child

was 12,

and it seemed that probably the parents, because of the child’s

medical condition, had been unable to care for her and consequently she was

deemed to be in need

of

care and protection.

FAMILY AND CONCILIATION COURTS

REVIEW,

Vol.

32

No.

2,

April

1994

184-207

0

1994

Sage

Publications,

Inc.

184

Graham

I

PARENS PATRIAF!

185

I

made a number of orders at the outset of the case. As soon as

I

heard that

the application was to be made,

I

adjourned and had a

look

at the various

legal authorities to make sure that when I actually conducted the case

I

would

be in accordance with law and taking all appropriate steps. I determined first

of

all that any judgment I gave would

be

public. Although

our

court is open

to the public, normally press

are

not there, and certainly one does not court

publicity.

I

ordered that the child would

be

described by initials, although not the

child’s actual initials, that the hospital would be merely described

as

“a

hospital,” and that the specialists would be described

as

“a doctor.” Both

barristers and the parents agreed with

this

course.

I

also indicated that I would hear the

case

and make an immediate decision,

as

it was a matter of extreme urgency,

as

I will explain to you shortly, but I

would not publish a judgment for a few days. In the meantime, there were no

other judges in Melbourne, and

I

was placing in train the possibility that if

an appeal were necessary that night, either a hearing by telephone would be

required or alternatively judges would travel back

to

Melbourne. All other

judges were at the World Congress on Family Law, and

I

was holding the fort

in Melbourne.

The facts of the case were the child was a child

of

the

marriage, therefore

the court clearly had jurisdiction, the child had been admitted to the hospital

suffering

from

cerebral palsy and Rhetts syndrome, a neurological condition,

and had been in and out of hospital since May

1982.

She had a serious chest

infection and pneumonia in both lungs. However, the prognosis seemed to

be somewhat guarded.

A

medical specialist gave evidence that without

mechanical or ventilatory device, she might live for a day or

2

days or even

months, but on the probabilities, he was unable to say one way or the other.

In the event that she was subjected to mechanical ventilation or respiratory

device, or even resuscitation, this could significantly lengthen the period of

her life. This submission was supported by counsel for Health and Commu-

nity Services and the parents themselves. They sought that the application be

granted on the basis that the longer the child lived, the more pain she would

suffer and the longer she would be required to remain in hospital away from

her foster family. It was submitted by counsel for the hospital that the best

interests of the child would be served by comforting her and minimizing her

pain. She was not awake and her general condition was described

as

severe

untreatable progressive problems.

There were no affidavits before me. The evidence was viva voce. The

treating doctor was a highly qualified consultant physician to the hospital.

He had known the child for some years. He said it was likely she would

die

in the next

24

hours, but if she did not, she would slowly improve

and

there