The family and the state

3.5 The stability of the state requires that children be brought up to take their place as autonomous members of their communities. The state assists families in meeting this responsibility for children, intervening for the protection or control of children when the family is not meeting or cannot meet this responsibility to the standards set by the state.

3.6 There are a variety of theories about how the family and the state ought to relate with respect to children.^[5] One perspective has the state taking a minimal role in caring for children, intervening only in extreme cases for the protection or correction of children. It is argued that this minimal level of intervention is necessary to respect the privacy and the sanctity of the parent-child relationship.^[6] Critics of this approach argue that the ‘extreme cases’ concept where intervention is permitted is too narrow, excluding categories such as ‘risk of abuse’ and emotional harm in which a child can suffer as much damage as in a case of physical abuse.^[7] They also argue that the wishes of children are neglected in this approach as children’s interests are assumed to coincide with those of their parents.^[8]

3.7 At the other end of the spectrum, advocates for strong state intervention in family life seek to ensure that all children are provided with a right to caring adults who meet their needs.^[9] In this model, the state makes the decisions as to whom those adults should be.^[10] While the focus of this model is the child rather than the adults in the family, this model of intervention may overlook the strength of bonds between parent and child, even when the parent may be considered unsatisfactory. It also places too much faith in the value of state intervention, assuming that the agents of the state, such as social workers and judges, are capable of making sound and appropriate judgments that provide better outcomes for children.^[11]

3.8 A third perspective on the role of the state in family life sees the main function of state intervention as maintaining the biological family wherever possible, or at the least maintaining the links between the family and child should separation be necessary.^[12] State intervention is reserved for responding to problems within families, attempting to redress these so that the child can remain at home or at least in close contact with the family.^[13] Critics argue that this view may place too much emphasis on biological ties and that it does not differentiate between the interests, feelings and welfare of children and those of parents.^[14]

3.9 Each of these models of state intervention in family life is utilised to some extent in Australian family law, care and protection legislation, juvenile justice legislation, income support regulations and other legal processes and regulations that govern childhood and families. Each perspective envisions some kind of interaction between the state and the family. The point of this interaction is the legal process.