Parens patriae: the paternalist model of children's rights

This study examines the role that paternalism plays
\nin the exercise and vindication of the rights of the
\nchild.
\n
\nThis study demonstrates that paternalism plays a
\ndetermining role in the exercise and vindication of the
\nrights of the child. The study shows that this
\npaternalism was originally inherent in judicial lawmaking,
\ndeployed as a consequence of the importance of
\nparens patriae to the constitutional and administrative
\nframework of the State.
\n
\nThe thesis analyses the judicial role in proceedings
\ninvolving the rights of the child in Ireland, England,
\nthe United States and to a lesser extent Canada. The
\nthesis demonstrates that the judicial role has a dual
\nfunction. First, the judge must protect the integrity of
\nthe family unit to which a child is born. Second, the
\njudge is the protector and vindicator of the child's
\nrights.
\n
\nChapter 1 outlines the rights model and the concept
\nof parens patriae. This chapter also constructs the
\nwelfare model regulating the relationships between the
\nchild, parents and the State. This chapter shows that the
\njudiciary have developed the welfare model in which they
\nare the dominant actors. In chapter 2 the relevant
\nliterature is discussed and analysed. Chapters 3, 4 and 5
\nprove that judicial paternalism plays a determining role
\nin proceedings concerned with the exercise and
\nvindication of the rights of the child in the health
\ncare, education and juvenile justice systems. Chapter 6
\ncontains the conclusions to this study and provides
\nsuggestions for reform.
\n
\nThe main conclusion of the thesis is that an optimal
\nmodel of child law must reiterate the concept of parens
\npatriae shorn of its inappropriate paternalistic
\naccretions.

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