Duhaime's Law Dictionary


Parens Patriae Definition:

Latin: literally, father of the country. Refers to the inherent jurisdiction of the courts to make decisions concerning people who are not able to take care of themselves.
• Don't miss the comprehensive, companion article Parens Patriae - The Wildcard of a Court's Inherent Jurisdiction Over Children.

A British common law creation whereby the courts have the right to make decisions concerning people who are not able to take care of themselves.

For example, court can make custody decisions regarding a child or an insane person, even without a statute to allow them to do so, based on their residual, common law-based parens patriae jurisdiction.
Curtis described parens patriae as follows:

"Historically, it has referred to the king as father and protector of his people."

Indeed, in the 1722 case of Eyre v Shaftsbury:

"The king is bound of common rights and by the laws to defend his subjects, their goods and chattels, lands and tenements, and by the law of this realm, every loyal subject is taken to be within the King's protection, for which reason it is, that idiots and lunatics, who are incapable to take care of themselves, are provided for by the king as pater patriae, and there is the same reason to extend this care to infants."

And these words of authors Lowe and White:

"Its early origins date from feudal times when wardship was an incident of tenure arising when a tenant died leaving an infant heir. On such occasion the lord became guardian of both the infant heir's land and body. The exploitation of wardship for profit was a particular trait of military tenure and no one benefitted more than the Crown whose prerogative rights arose on death of a tenant-in-chief....

"By the nineteenth century it had become accepted that the true origin of wardship lay in the concept that the sovereign, as parens patriae, had a duty to protect his subjects, particularly those such as children who were unable to protect themselves and that this duty had been entrusted to the Lord Chancellor and through him to the Court of Chancery."

In E. v Eve:

"From the earliest time, the sovereign, as parens patriae, was vested with the care of the mentally incompetent. This right and duty ... is founded on the obvious necessity that the law should place somewhere the care of persons who are not able to take care of themselves.

"In early England, the parens patriae parens patriae jurisdiction was confined to mental incompetents, but its rationale is obviously applicable to children and, following the transfer of that jurisdiction to the Lord Chancellor in the seventeenth century, he extended it to children under wardship, and it is in this context that the bulk of the modern cases on the subject arise. The jurisdiction was later vested in the provincial superior courts of this country."

And in Rutherford v Ontario:

"The parens patriae jurisdiction is ... founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the best interest of the protected person, or again, for his or her benefit or welfare.

"While the Superior Court retains a residual jurisdiction to use the parens patriae power, it will not do so lightly. This jurisdiction is to be exercised to protect children and other vulnerable individuals, not their parents. The courts have determined that parens patriae is available in two situations: to fill a legislative gap or on judicial review."

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