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Family Law - Essay Example

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A person who has not completed the age of eighteen is a child as defined by section 105 (1) of the Children Act 1989.1 Though it implies that minor children under 18 have no right to consent or refuse medical treatment, the Family Law Reforms Act 1969 empowers a child to do so…
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Download file to see previous pages The treatment mentioned above includes any diagnostic procedures and anaesthetic administration ancillary to the main treatment. As per section 12 of the Act, an infant can also be described as a minor.2 However, this right of consent for children over 16 but below 18 is not absolute. As family law is of discretionary nature , all previously decided cases need not constitute precedents to be binding on judges who are expected to decide by giving weightage to cases independently for the unique factors surrounding them. It does not imply, however, that case law comprises of unconnected decisions since judges functioning with wide discretion develop particular “patterns, rules of thumb and general principles.” Therefore, there are limits within which judges can firm up their discretion. Thus when there is no guidance from the legislature, courts have assumed to act giving due regard to “fair outcome and “best interests of the child.3 Courts also draw guidance from the international treaties even though some of them may not have been adopted in domestic law. Thus, the U.N. Convention on the Rights of the Child, 1989 (UNRC) which the European Court of Human Rights (ECHR) also consults for interpretation of article 8 of the ECHR.4 that governs the rights of children.
Parekh5 points out that law relating to the child’s consent is not yet clear as far as “best interests of the child” is concerned. He quotes the authors Kennedy and Grub 6 as having classified the child development into three stages of early childhood, Gillick competent child and the child of 16-18 years of age. Consent by children under 16 years of age is not clear as it is governed by the common law. Consent is valid one only if given by persons having capacity to decide. Hence, during the first stage of development of childhood, parent alone can consent for medical or surgical treatment. In the second stage of Gillick competent child which case will be ...Download file to see next pagesRead More
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