Parens patriae
Encyclopedia
Parens patriae is Latin
for "parent of the nation." In law
, it refers to the public policy
power of the state
to intervene against an abusive or negligent parent, legal guardian
or informal caretaker, and to act as the parent of any child or individual who is in need of protection. For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, requiring state intervention. In U.S. litigation, parens patriae can be invoked by the state to create its standing
to sue; the state declares itself to be suing on behalf of its people. For example, the Hart-Scott-Rodino Antitrust Improvement Act of 1976
(15 USC 15(c)), through Section 4C of the Clayton Act, permits state attorneys general to bring parens patriae suits on behalf of those injured by violations of the Sherman Antitrust Act.
in the sixteenth century in cases of non compos mentis
adults. The notion dates from at least 1608, as recorded in Coke's Report of Calvin's Case, wherein it is said "that moral law, honora patrem...doubtless doth extend to him that is pater patriœ." The parens patriae doctrine was gradually applied to children throughout the seventeenth and eighteenth centuries, and has since evolved from one granting absolute rights to the sovereign to one more associated with rights and obligations of the state and courts towards children and incapacitated adults.
In most jurisdiction (area)s, this appears in the principle that makes the protection of the best interests
of any child the first and single most important concern of the court
s. For example, in any proceedings affecting the validity of a marriage
, the children will not be parties in their own right, nor will they be parties to any agreement that the spouses may make. In these proceedings, the courts will often be invited to accept and enforce any agreement between a husband and wife regarding parental responsibility
for their children. This will usually be done so long as the agreement is seen to be in the best interests and welfare of the children. Courts are not obliged to invoke the parens patriae doctrine in cases involving children and not all courts, particularly newer courts such as the Australian Family Court (est 1975), have specific parens patriae jurisdiction.
In the United States, invocation of the Parens Patriae Doctrine is constrained by the constitutional Parental Liberty Doctrine. This has the effect of limiting civil rights abuses caused by unjustified government interference with minors.
In some situations, the parties may have submitted their dispute to formal arbitration
proceedings. Such proceedings, whether judicial or quasi-judicial
, cannot displace the supervisory power of the court in the exercise of its parens patriae function to the child. To the extent that such an award conflicts with the best interests of the child, the courts will treat it as void in respect of the child, even though it might be binding on the parents. The test of the best interests of the child can always be the basis of a challenge by a parent, grandparent, an interested relative, or the child acting through a friend. Thus, for example, the spouses might already have been through a religious form of divorce known as the get
before the Beth Din
, the Jewish rabbinical court, which included provision for the children. Even though there might appear to be a grant of custody in absolute terms by this court, public policy always requires that it can be reviewed by a secular court and, if the state court is of the view that it is not in the best interests of the child, it will be set aside (see Stanley G. v. Eileen G. New York Law Journal, 10-13-94, P.22, Col.6, Sup. Ct., NY Co.).
Within the EU, the right of the child to be heard in any proceedings is a fundamental right provided in Article 24 Charter of Fundamental Rights of the European Union
. The views of the child shall be considered on matters which concern them in accordance with their age and maturity. It also provides that the child's best interest shall be the primary consideration in all actions relating to children, whether taken by public authorities or private institutions.
The same principles apply to individuals whose mental capacity
is impaired and who are being abused by carers or other individuals, whether family members or otherwise. Since these individuals cannot protect themselves, the courts have an inherent jurisdiction
to appoint a guardian ad litem for particular proceedings. In English Law
, long-term care is arranged through the Court of Protection
.
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "parent of the nation." In law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, it refers to the public policy
Public policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
power of the state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
to intervene against an abusive or negligent parent, legal guardian
Legal guardian
A legal guardian is a person who has the legal authority to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability...
or informal caretaker, and to act as the parent of any child or individual who is in need of protection. For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, requiring state intervention. In U.S. litigation, parens patriae can be invoked by the state to create its standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to sue; the state declares itself to be suing on behalf of its people. For example, the Hart-Scott-Rodino Antitrust Improvement Act of 1976
Hart-Scott-Rodino Antitrust Improvements Act
The Hart–Scott–Rodino Antitrust Improvements Act of 1976 is a set of amendments to the antitrust laws of the United States, principally the Clayton Antitrust Act. The HSR Act was signed into law by President Gerald R. Ford on September 30, 1976...
(15 USC 15(c)), through Section 4C of the Clayton Act, permits state attorneys general to bring parens patriae suits on behalf of those injured by violations of the Sherman Antitrust Act.
Discussion
Parens patriae relates to a notion initially invoked by the King's BenchKing's Bench
The Queen's Bench is the superior court in a number of jurisdictions within some of the Commonwealth realms...
in the sixteenth century in cases of non compos mentis
Non compos mentis
Non compos mentis is a term meaning 'not of sound mind'. Non compos mentis derives from the Latin non meaning "not", compos meaning "having ", and mentis , meaning "mind"...
adults. The notion dates from at least 1608, as recorded in Coke's Report of Calvin's Case, wherein it is said "that moral law, honora patrem...doubtless doth extend to him that is pater patriœ." The parens patriae doctrine was gradually applied to children throughout the seventeenth and eighteenth centuries, and has since evolved from one granting absolute rights to the sovereign to one more associated with rights and obligations of the state and courts towards children and incapacitated adults.
In most jurisdiction (area)s, this appears in the principle that makes the protection of the best interests
Best interests
Best interests or best interests of the child is the doctrine used by most courts to determine a wide range of issues relating to the well-being of children. The most important of these issues concern questions that arise upon the divorce or separation of the children's parents...
of any child the first and single most important concern of the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s. For example, in any proceedings affecting the validity of a marriage
Marriage (conflict)
In conflict of laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural and multi-national relationships...
, the children will not be parties in their own right, nor will they be parties to any agreement that the spouses may make. In these proceedings, the courts will often be invited to accept and enforce any agreement between a husband and wife regarding parental responsibility
Parental responsibility (access and custody)
In the nations of the European Union and elsewhere, parental responsibility refers to the rights and privileges which underpin the relationship between a child and either of the child's parents or those adults who have a significant role in the child's life...
for their children. This will usually be done so long as the agreement is seen to be in the best interests and welfare of the children. Courts are not obliged to invoke the parens patriae doctrine in cases involving children and not all courts, particularly newer courts such as the Australian Family Court (est 1975), have specific parens patriae jurisdiction.
In the United States, invocation of the Parens Patriae Doctrine is constrained by the constitutional Parental Liberty Doctrine. This has the effect of limiting civil rights abuses caused by unjustified government interference with minors.
In some situations, the parties may have submitted their dispute to formal arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
proceedings. Such proceedings, whether judicial or quasi-judicial
Quasi-judicial body
A quasi-judicial body is an individual or organization which has powers resembling those of a court of law or judge and is able to remedy a situation or impose legal penalties on a person or organization.-Powers:...
, cannot displace the supervisory power of the court in the exercise of its parens patriae function to the child. To the extent that such an award conflicts with the best interests of the child, the courts will treat it as void in respect of the child, even though it might be binding on the parents. The test of the best interests of the child can always be the basis of a challenge by a parent, grandparent, an interested relative, or the child acting through a friend. Thus, for example, the spouses might already have been through a religious form of divorce known as the get
Get (conflict)
A get or gett is the Jewish form of divorce which, when one is available in the state of residence, is supervised by a Beth Din , a rabbinical court...
before the Beth Din
Beth din
A beth din, bet din, beit din or beis din is a rabbinical court of Judaism. In ancient times, it was the building block of the legal system in the Biblical Land of Israel...
, the Jewish rabbinical court, which included provision for the children. Even though there might appear to be a grant of custody in absolute terms by this court, public policy always requires that it can be reviewed by a secular court and, if the state court is of the view that it is not in the best interests of the child, it will be set aside (see Stanley G. v. Eileen G. New York Law Journal, 10-13-94, P.22, Col.6, Sup. Ct., NY Co.).
Within the EU, the right of the child to be heard in any proceedings is a fundamental right provided in Article 24 Charter of Fundamental Rights of the European Union
Charter of Fundamental Rights of the European Union
The Charter of Fundamental Rights of the European Union enshrines certain political, social, and economic rights for European Union citizens and residents, into EU law. It was drafted by the European Convention and solemnly proclaimed on 7 December 2000 by the European Parliament, the Council of...
. The views of the child shall be considered on matters which concern them in accordance with their age and maturity. It also provides that the child's best interest shall be the primary consideration in all actions relating to children, whether taken by public authorities or private institutions.
The same principles apply to individuals whose mental capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
is impaired and who are being abused by carers or other individuals, whether family members or otherwise. Since these individuals cannot protect themselves, the courts have an inherent jurisdiction
Inherent jurisdiction
Inherent jurisdiction is a doctrine of the English common law that a superior court has the jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal...
to appoint a guardian ad litem for particular proceedings. In English Law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, long-term care is arranged through the Court of Protection
Court of Protection
The Court of Protection in English law is a superior court of record created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves...
.
Further reading
- Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health Prescription by Donald G. Gifford. Ann Arbor, University of Michigan PressUniversity of Michigan PressThe University of Michigan Press is part of the University of Michigan Library and serves as a primary publishing unit of the University of Michigan, with special responsibility for the creation and promotion of scholarly, educational, and regional books and other materials in digital and print...
, 2010. ISBN 978-0-472-11714-7