Childhood obesity: is it time for the courts to weigh in?

by Peter Magee on May 29, 2012

Peter Magee

In an article dated 14 July 2011, Dan Harris and Mikaela Conley discussed the issue of whether or not children should be removed from parents if they are obese. The article called “Childhood Obesity: a call for parents to lose custody” was published in ABC News.

The article mainly canvases the ideas of the Harvard University child obesity expert, Dr Ludwig, who claims that “State intervention is the best way to tackle childhood obesity and in cases of extremely obese children, removal from the home may be justifiable”. Dr Ludwig justifies this on the basis of “imminent health risks and parent’s chronic failure to address medical problems”.

Dr Ludwig’s views have been highly controversial. Harris and Conley report that the majority of experts who have contacted ABC News have disagreed with Dr Ludwig’s proposal.

The article discussed the case of a three year old child, Anna Marie Regino, who weighed 90 pounds, being taken from her parents by government officials and placed in foster care for two months. The article reports that the incident was extremely traumatic for both Anna Marie’s mother and Anna Marie, who is now aged 14. In the end, it was found that Anna Marie had a genetic predisposition towards obesity.

In Australia, the Courts no longer refer to “custody” of children, as the article headline implies. However, Courts make Orders firstly in relation to whether or not parents should have equal shared parental responsibility for a child. This would include things such as the child’s health and medical care. Once a Court has considered whether or not parents should have equal shared parental responsibility for a child, they will also consider the parents’ arrangements for time with the child. If the Court has found that equal shared parental responsibility is appropriate, then the Court is required to consider if an Order for equal time is also appropriate. The Court is required to consider the best interests of the child, so theoretically, health issues such as obesity could be considered.

While I am of the view that childhood obesity is a serious issue in the sense that it poses long-term health problems for the child, I do not think overall that I agree with the removal of a child from its primary carer due to this issue alone. Rather than a legal approach, perhaps this is an issue best tackled through education and programs that could be offered to parents teaching them how to provide healthy meals to families and incorporate exercise into the family’s routine.

Certainly, we do see matters where separated parents differ regarding their view as to what is appropriate for a child’s health, nutrition and exercise. For example, cases where one parent objects to the other parent taking the child out for fast food meals.

If you have enquiries regarding parenting generally or concerns regarding how the other parent of your child is caring for the health of your child, please do not hesitate to contact us at Armstrong Legal on (02) 9261 4555.

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