Parens patriae

Parens patriae is Latin for "parent of the nation" (lit., "parent of the fatherland"). 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, thus 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 15c), 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 Bench in the sixteenth century in cases of non compos mentis adults.[1] 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 patriæ."[2]

The parens patriæ 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.[3][4]

In most jurisdictions, 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 courts. 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 Family Court of Australia, have specific parens patriae jurisdiction.

In the United States, some proponents of homeschooling have asserted that the Parens Patriae Doctrine is constrained by a so-called "Parental Liberty Doctrine."[5]

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.

In US federal courts

The concept of the parens patriae suit has been greatly expanded in the United States federal courts beyond those that existed in England.[6]

In Louisiana v. Texas,[7] the State of Louisiana brought suit to enjoin officials of the State of Texas from so administering the Texas quarantine regulations as to prevent Louisiana merchants from sending goods into Texas. The US Supreme Court recognized that Louisiana was attempting to sue, not because of any particular injury to a particular business of the state, but as parens patriae for all its citizens.[8] While the Court found that parens patriae could not properly be invoked in that case, the propriety and utility of parens patriae suits were clearly recognized, thus setting a precedent. Thus, in a series of cases after Louisiana v. Texas the Supreme Court followed that precedent to allow states to sue as parens patriae:

  • Missouri v. Illinois, 180 U.S. 208 (1901) (holding that Missouri was permitted to sue Illinois and a Chicago sanitation district on behalf of Missouri citizens to enjoin the discharge of sewage into the Mississippi River);
  • Kansas v. Colorado, 206 U.S. 46 (1907) (holding that Kansas was permitted to sue as parens patriae to enjoin the diversion of water from an interstate stream);
  • Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) (holding that Georgia was entitled to sue to enjoin fumes from a copper plant across the state border from injuring land in five Georgia counties);
  • New York v. New Jersey, 256 U.S. 296 (1921) (holding that New York could sue to enjoin the discharge of sewage into the New York harbor);
  • Pennsylvania v. West Virginia, 262 U.S. 553 (1923) (holding that Pennsylvania might sue to enjoin restraints on the commercial flow of natural gas);
  • North Dakota v. Minnesota, 263 U.S. 365 (1923) (holding that Minnesota could sue to enjoin changes in drainage which increase the flow of water in an interstate stream).

The Supreme Court recognized a different kind of paren patriae suit in Georgia v. Pennsylvania R. Co.[9] While the earlier cases were common-law actions to prevent or repair harm to a state's "quasi-sovereign" interests. Georgia now sought relief under the federal antitrust statute, alleging that twenty railroads had conspired to restrain trade and to fix prices in a manner that would favor shippers in other states (particularly northern states) to the detriment of Georgia shippers and the state's economy. The court upheld Georgia's claim as parens patriae with respect to injunctive relief, but did not consider whether the antitrust laws also authorized damages for an injury to the state's economy, because the ICC's approval of the challenged rates barred any damage recovery.

Then, three decades later, in Hawaii v. Standard Oil Co.,[10] the court considered a generally similar damages action Hawaii brought under the antitrust laws for damages to its general economy resulting from a price fix by four oil companies. The court held that the state could sue as parens patriae only for injunctive relief and not for damages. Its citizens would have to sue individually for damages.

In Massachusetts v. EPA,[11] a group of states (mostly coastal states) sought to sue the EPA to require it to regulate greenhouse gas emissions because they were causing global warming and rising sea levels. "These rising seas have already begun to swallow Massachusetts' coastal land."[12] The court stated:

In sum—at least according to petitioners' uncontested affidavits—the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek.[13]

Therefore, states such as Massachusetts had standing as parens patriae to sue EPA to seeks to require it to regulate to protect their coastlines. The Court held that EPA would have to consider the matter and give a reasoned explanation of whatever its decision on the merits would be.[14]

In Pennsylvania v. Mid-Atlantic Toyota Distributors, Inc.,[15] the Fourth Circuit held that several state attorney generals were proper parens patriae plaintiffs to sue a group of car dealers for price fixing, in order to recover damages for their citizen injured by overcharges. The court held that because plaintiffs were authorized to pursue antitrust litigation against defendants on behalf of their states' natural-person residents under both 15 U.S.C. §§ 15c-15h and state laws and constitutions, they could sue on behalf of their citizens.

See also

Further reading

  • Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health Prescription by Donald G. Gifford. Ann Arbor, University of Michigan Press, 2010. ISBN 978-0-472-11714-7

References

  1. ^ Lat: not having control over the mind or intellect. Not of sound mind; insane. See 108 A. 2d 820, 822. In certain circumstances its effect is lessened to mean only "not legally competent." See 1 S.E. 2d 768, 770. Compare diminished capacity; incompetent; non sui juris.
  2. ^ Sir Edward Coke; John Henry Thomas; John Farquhar Fraser (1826). The Reports of Sir Edward Coke, Knt. [1572-1617]: In Thirteen Parts. J. Butterworth and Son. pp. 21–. Retrieved 4 July 2013.
  3. ^ People v. Bennett: Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment, 1996 BYU Law Review 186, 227-34
  4. ^ Removing Classrooms from the Battlefield: Liberty, Paternalism, and the Redemptive Promise of Educational Choice, 2008 BYU Law Review 377, 386 n.30
  5. ^ Parens Patriae – Quaqua Society
  6. ^ Hawaii v. Standard Oil Co., 405 U.S. 251 (1972).
  7. ^ 176 U.S. 1 (1900).
  8. ^ 176 U.S., at 19.
  9. ^ 324 U.S. 439 (1945).
  10. ^ 405 U.S. 251 (1972).
  11. ^ 549 U.S. 497 (2007).
  12. ^ 549 U.S. at 522.
  13. ^ 549 U.S. at 526.
  14. ^ 549 U.S. at 534-35.
  15. ^ 704 F.2d 125 (4th Cir. 1983).
Charitable trust

A charitable trust is an irrevocable trust established for charitable purposes and, in some jurisdictions, a more specific term than "charitable organization". A charitable trust enjoys a varying degree of tax benefits in most countries. It also generates good will. Some important terminology in charitable trusts is the term ‘corpus’ (Latin for ‘body’) which refers to the assets with which the trust is funded and the term ‘donor’ which is the person donating assets to a charity.

Charitable trusts in English law

Charitable trusts in English law are a form of express trust dedicated to charitable goals. There are a variety of advantages to charitable trust status, including exception from most forms of tax and freedom for the trustees not found in other types of English trust. To be a valid charitable trust, the organisation must demonstrate both a charitable purpose and a public benefit. Applicable charitable purposes are normally divided into categories for public benefit including the relief of poverty, the promotion of education, the advancement of health and saving of lives, promotion of religion and all other types of trust recognised by the law. There is also a requirement that the trust's purposes benefit the public (or some section of the public), and not simply a group of private individuals.

Such trusts will be invalid in several circumstances; charitable trusts are not allowed to be run for profit, nor can they have purposes that are not charitable (unless these are ancillary to the charitable purpose). In addition, it is considered unacceptable for charitable trusts to campaign for political or legal change, although discussing political issues in a neutral manner is acceptable. Charitable trusts, as with other trusts, are administered by trustees, but there is no relationship between the trustees and the beneficiaries. This results in two things; firstly, the trustees of a charitable trust are far freer to act than other trustees and secondly, beneficiaries cannot bring a court case against the trustees. Rather, the beneficiaries are represented by the Attorney General for England and Wales as a parens patriae, who appears on the part of The Crown.

Jurisdiction over charitable disputes is shared equally between the High Court of Justice and the Charity Commission. The Commission, the first port of call, is tasked with regulating and promoting charitable trusts, as well as providing advice and opinions to trustees on administrative matters. Where the Commission feels there has been mismanagement or maladministration, it can sanction the trustees, removing them, appointing new ones or temporarily taking the trust property itself to prevent harm being done. Where there are flaws with a charity, the High Court can administer schemes directing the function of the charity, or even, under the Cy-près doctrine, change the purpose of the charity or gift altogether.

Children's Court of New South Wales

The Children's Court of New South Wales is a court within the Australian court hierarchy established pursuant to the Children's Court Act 1987 (NSW) which deals with criminal offences committed by children aged over 10 years and under 18 years, as well as with proceedings relating to the care and protection of children. The court commenced on 18 January 1988.

Compulsory sterilization in Canada

Compulsory sterilization in Canada has a documented history in, at minimum, the provinces of Alberta and British Columbia. In 2017, sixty indigenous women in Saskatchewan sued the provincial government, claiming they had been forced to accept sterilization before seeing their newborn babies.Canadian compulsory sterilization operated via the same overall mechanisms of institutionalization, judgement, and surgery as the American system. One notable difference is in the treatment of non-insane criminals; Canadian legislation never allowed for punitive sterilization of inmates.

Contact (law)

In family law, contact, visitation and access are synonym terms that denotes the time that a child spends with the non-custodial parent, according to an agreed or court specified parenting schedule. The visitation term is not used in a shared parenting arrangement where the mother and father have joint physical custody.Unsupervised visitation is the most common type, when the parent may take the child to his or her home or enjoy any outing with the child. In supervised visitation, another adult must be present, and there is sometimes a court order to occur at a predetermined supervised child contact centre. Virtual visitation uses video-conferencing technology to allow contact when a child lives far away from the parent.

E (Mrs) v Eve

E (Mrs) v Eve, [1986] 2 S.C.R. 388 is a judgment by the Supreme Court of Canada regarding a mother's request for the consent of the court to have her disabled daughter sterilized. This was a landmark case which is influential in Canadian legal decisions involving proxy-consented, non-therapeutic medical procedures performed on people of diminished mental capacity.

Eugenio Manni

Eugenio Manni (Modena, 31 May 1910 – Fiumalbo, 14 September 1989) was an Italian ancient historian.

Excuse

In jurisprudence, an excuse is a defense to criminal charges that is distinct from an exculpation. Justification and excuse are different defenses in a criminal case (See Justification and excuse). Exculpation is a related concept which reduces or extinguishes a person's culpability and therefore a person's liability to pay compensation to the victim of a tort in the civil law.

The "excuse" provides a mitigating factor for a group of persons sharing a common characteristic. Justification, as in justifiable homicide, vindicates or shows the justice. Thus, society approves of the purpose or motives underpinning some actions or the consequences flowing from them (see Robinson), and distinguishes those where the behavior cannot be approved but some excuse may be found in the characteristics of the defendant, e.g. that the accused was a serving police officer or suffering from a mental illness. Thus, a justification describes the quality of the act, whereas an excuse relates to the status or capacity (or lack of it) in the accused. These factors can affect the resulting judgment which may be an acquittal, or in the case of a conviction may mitigate sentencing. An excuse may also be something that a person or persons use to explain any criticism or comments based on the outcome of any specific event.

Father of the Nation

The Father of the Nation is an honorific title given to a man considered the driving force behind the establishment of his country, state, or nation. Pater Patriae (plural Patres Patriae), also seen as Parens Patriae, was a Roman honorific meaning the "Father of the Fatherland", bestowed by the Senate on heroes, and later on emperors. In monarchies, the monarch was often considered the "father/mother of the nation" or as a patriarch to guide his family. This concept is expressed in the Divine Right espoused in some monarchies, while in others it is codified into constitutional law as in Spain, where the monarch is considered the personification and embodiment, the symbol of the unity and permanence of the nation. In Thailand, the monarch is given the same recognition, and demonstrated loyalty is enforced with severe criminal statutes.

Many dictators bestow titles upon themselves, which rarely survive the end of their regime. Gnassingbé Eyadéma of Togo's titles included "father of the nation", "older brother", and "Guide of the People". Mobutu Sese Seko of Zaire's included "Father of the nation", "the Guide", "the Messiah", "dajsh, "the Leopard", and "the Sun-President".

In postcolonial Africa, "father of the nation" was a title used by many leaders both to refer to their role in the independence movement as a source of legitimacy, and to use paternalist symbolism as a source of continued popularity. On Joseph Stalin's seventieth birthday in 1949, he was bestowed with the title "Father of Nations" for his establishment of "people's democracies" in countries occupied by the USSR after World War II.The title "Father of the Nation" is sometimes politically contested. The 1972 Constitution of Bangladesh declared Sheikh Mujibur Rahman to be "father of the nation". The BNP government removed this in 2004, to the protests of the oppostition Awami League, led by Rahman's daughter Sheikh Hasina. A motion in the Parliament of Slovakia to proclaim controversial pre-war leader Andrej Hlinka "father of the nation" nearly passed in September 2007.

Gillick competence

Gillick competence is a term originating in England and is used in medical law to decide whether a child (under 16 years of age) is able to consent to his or her own medical treatment, without the need for parental permission or knowledge.

The standard is based on the 1985 decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority. The case is binding in England and Wales, and has been adopted to varying extents in Australia, Canada and New Zealand. Similar provision is made in Scotland by the Age of Legal Capacity (Scotland) Act 1991. In Northern Ireland, although separate legislation applies, the then Department of Health and Social Services stated that there was no reason to suppose that the House of Lords' decision would not be followed by the Northern Ireland Courts.

Hart–Scott–Rodino Antitrust Improvements Act

The Hart–Scott–Rodino Antitrust Improvements Act of 1976 (Public Law 94-435, known commonly as the HSR Act) 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. The context in which the HSR Act is usually cited is 15 U.S.C. § 18a, title II of the original law. The HSR Act is named after senators Philip A. Hart and Hugh D. Scott, Jr. and representative Peter W. Rodino.

The HSR Act provides that parties must not complete certain mergers, acquisitions or transfers of securities or assets, including grants of executive compensation, until they have made a detailed filing with the U.S. Federal Trade Commission and Department of Justice and waited for those agencies to determine that the transaction will not adversely affect U.S. commerce under the antitrust laws. While parties can carry out due diligence and plan for post-merger integration, they may not take any steps to integrate operations, such as an acquiring party obtaining operational control of the acquired party.

In loco parentis

The term in loco parentis, Latin for "in the place of a parent" refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent. Originally derived from English common law, it is applied in two separate areas of the law.

First, it allows institutions such as colleges and schools to act in the best interests of the students as they see fit, although not allowing what would be considered violations of the students' civil liberties.Second, this doctrine can provide a non-biological parent to be given the legal rights and responsibilities of a biological parent if they have held themselves out as the parent.The in loco parentis doctrine is distinct from the doctrine of parens patriae, the psychological parent doctrine, and adoption.

Pater Patriae

Pater Patriae (plural Patres Patriae), also seen as Parens Patriae, is a Latin honorific meaning "Father of the Country", or more literally, "Father of the Fatherland". It is also used of U.S. President George Washington, Italian King Victor Emmanuel II and Swedish King Gustav I.

Residence in English family law

Residence may refer to various parts of English law including taxation, immigration, and family law. This article deals exclusively with English family law. See residence in English law for disambiguation.

In family law, the Court can order a Residence Order of the Family Court under section 8 of The Children Act 1989 following the breakdown of a marriage and determining where the children are to live and with whom. The order can be sole or joint, and if joint, it can be made to a couple regardless whether they are married. If a residence order is granted, this automatically gives him, her, or them parental responsibility for the child(ren) which will continue until the order terminates (usually this will be until the child(ren) reach their sixteenth birthday unless there are exceptional circumstances justifying a longer period).

Richard Ieyoub

Richard Phillip Ieyoub, Sr. (born August 11, 1944), is a Baton Rouge lawyer and a Democratic politician who was the attorney general of Louisiana from 1992 to 2004. Ieyoub was the Calcasieu Parish district attorney in Lake Charles from 1984 to 1992, and is now with the Baton Rouge firm Couhig Partners. Allied with his party's liberal wing, Ieyoub finished in third place in the nonpartisan blanket primary for the U.S. Senate in 1996, and for the Louisiana governorship in 2003.

Sole custody

Sole custody is a child custody arrangement whereby only one parent has physical custody while either one or both parents may have legal custody of the child. Sole custody has been the traditional form of child custody after divorce; however, there has been a trend since the 1980s towards joint physical custody with shared parenting, as research has shown that such arrangements are more favorable to the physical, mental and social well-being of children.

Third-party custody

In some custody situations, it is possible that the child/children will not remain with either of their natural, biological, parents, but instead custody is awarded to a third person. Generally speaking, third-party custody occurs when one of two options occur:

The biological parents do not want custody of the child/children.

The biological parents are incapable of caring for the child/children.

Ward (law)

In law, a ward is someone placed under the protection of a legal guardian.

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