Parens patriae: the paternalist model of children's rights

This study examines the role that paternalism plays in the exercise and vindication of the rights of the child. This study demonstrates that paternalism plays a determining role in the exercise and vindication of the rights of the child. The study shows that this paternalism was originally inherent in judicial lawmaking, deployed as a consequence of the importance of parens patriae to the constitutional and administrative framework of the State. The thesis analyses the judicial role in proceedings involving the rights of the child in Ireland, England, the United States and to a lesser extent Canada. The thesis demonstrates that the judicial role has a dual function. First, the judge must protect the integrity of the family unit to which a child is born. Second, the judge is the protector and vindicator of the child's rights. Chapter 1 outlines the rights model and the concept of parens patriae. This chapter also constructs the welfare model regulating the relationships between the child, parents and the State. This chapter shows that the judiciary have developed the welfare model in which they are the dominant actors. In chapter 2 the relevant literature is discussed and analysed. Chapters 3, 4 and 5 prove that judicial paternalism plays a determining role in proceedings concerned with the exercise and vindication of the rights of the child in the health care, education and juvenile justice systems. Chapter 6 contains the conclusions to this study and provides suggestions for reform. The main conclusion of the thesis is that an optimal model of child law must reiterate the concept of parens patriae shorn of its inappropriate paternalistic accretions