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Family Law

The leading authority on all aspects of family law

21 JUN 2013

Private and public children law: an under-explored relationship [2013] CFLQ 138

Andrew Bainham

Barrister

Keywords: Public - Private - Law - Children - Relationship

Legal disputes concerning children are divided conceptually into private or public law. This binary classification disguises the reality that many such cases are hybrid, containing elements of both. The high incidence of these cases requires consistency in the fundamental principles which govern private and public law.

It is argued in this paper that the welfare principle now dominates all children proceedings to the extent that the public law threshold, thought to be critical to state intervention, is often marginalised. Welfare also now governs adoption law, notwithstanding that adoption is today primarily a child protection mechanism.

The involvement of local authorities in private law proceedings invites a reappraisal of the courts' powers; the differential treatment of relatives in the private and public law is questionable; the basis for compulsory state intervention at the interim stage of care proceedings is arguably insufficiently rigorous; and the heavy reliance by the state on the relatively nebulous concepts of neglect and emotional harm calls into question the adequacy of the statutory threshold. It is finally questionable why the concept of the ‘good enough' parent applies in the public but not in the private law, yet the state removes children from parents to alternative carers under both.

The full version of this article appears in issue 2 of 2013 of Child and Family Law Quarterly.

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