Decisions on behalf of your Children: The doctrine of ‘Parens Patriae’ in Australia

Parens Patriae means ‘parent of the country’ in Latin, and refers to the common law doctrine by which the Sovereign has an obligation to protect the interests of those unable to protect themselves, such as children and mentally incapacitated adults.[1] For example, the State has a duty to protect children or the mentally ill who are abused or neglected.

In the earliest days of the doctrine in England, Parens Patriae was restricted to only the mentally incompetent, but in the seventeenth century, the Lord Chancellor extended the duty towards children as well. Parens Patriae jurisdiction does not extend to mentally competent adults, deceased persons or unborn foetuses.

Today in Australia, Parens Patriae jurisdiction is vested in the Supreme Courts of the States and Territories. Many cases involving Parens Patriae concern the protection of children. For example,if a child does not have a guardian or has a negligent or abusive guardian, the state may intervene to ensure the child receives the care they require.