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Turning Tables: The Child’s Duty of Care to Parents

In February 2018 Attorney-General Christian Porter announced that elder abuse was a top personal priority for him. A national plan will be developed to stop physical, emotional and financial abuse of elderly Australians, especially those living in care. Australian case law such as Stanford v Stanford has recognised the Family Court’s ability to intervene when elders are being financially abused and provide recourse even if a breakdown of the marriage has not occurred. Many anecdotes of this kind involve adult children shifting their parents assets and in a bid to control the family wealth.

Australia has an aging population and the prevalence of neglect and abuse suffered by elder citizens has sparked a national conversation about the need for greater protection. As Australia begins to address concerns surrounding our aging population, international best practice on the topic has become a divisive topic. It is clear in nearly all countries that parents owe a significant duty of care to their children. Inevitably, all parents age and eventually the tables are turned. So, what is the duty of care a child owes to their parent?

The aging population in regional neighbour China has left the Chinese Government facing similar issues. Unlike Australia, China does not have many public senior care options. Further still, there are few regulations around private care providers and although there is great demand, few institutions have entered the market. Making it clear that the protection of elders is a priority, the Chinese Government have developed a national plan that aims to address these concerns by 2020. However in the interim, the Chinese government has taken an interesting approach.

In 2013, the Chinese Government introduced a new “Elderly Rights Law”. The purpose of the law was to address the issue of an aging population, many of whom who have only one child, living at home without care. In practice, the law criminally sanctions children who do not visit their elderly parents often enough with the possibility of jail time. Elderly parents can apply for mediation or apply to the court to sue their children for a lack of both emotional and financial support. The law goes as far as to legislate that children cannot give up their rights to inheritance in a bid to avoid the duty to care for their parents. There have been many criticisms of the law, with citizens arguing that family values should not be legislated and that the duty of care on the child is too great.

France has a similar law that provides that adult children must financially support their aging parents and “honour and respect” them. Judges have the discretion to set the amount that children are to pay their parents and those who do not abide face fines or prison time.

These elder rights laws act as a mirror to many of our child protection laws that legislate the care and neglect of children. As many countries around the world criminalise these aspects of family life it poses the question, how far should we go to protect the interest of our aging population and how much of the burden should children carry?

 

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