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Nicholson, Alastair; Harrison, Margaret; Sandor, Danny --- "The Role of the Family Court in Medical Procedure Cases" [1996] AUJlHRights 7; (1996) 2(2) Australian Journal of Human Rights 242

The Role Of The Family Court In Medical Procedure Cases

Alastair Nicholson,[*] Margaret Harrison,[**] and Danny Sandor[***]


The Family Court of Australia has a special responsibility to decide cases which involve the medical treatment of minors. For example, the Court has been called upon to consider the gender reassignment of a 14 year old child[1] and the performance of cardiac surgery on a child where parental consent was refused.[2] The Court's authority and obligation to determine medical procedure cases has been shaped mainly by a series of decisions concerning applications, usually by parents, for the sterilisation of young women whose considerable intellectual disability prevents them giving informed consent to the procedure.[3] Accordingly, in this article about the jurisdiction and role of the Family Court in medical procedure cases, particular attention will be paid to sterilisation cases.

At the outset, it should be appreciated that there is reason to doubt that the relatively few applications which are brought represent the extent of compliance with the law requiring authorisation. Medicare statistics obtained by Wilson et al[4] show that 262 hysterectomies were performed in Australia on females aged 19 or below between 1986 and 1991. Although no reasons were provided by Medicare, Wilson conclude that the rarity of serious gynaecological physical conditions in women of this age group suggests "that many of the young women represented in these figures have an intellectual disability". The figures appear to be an under - rather than an over - representation of the incidence as they exclude services provided by hospital doctors to public patients in public hospitals.

More recently, figures provided by Brady show that for the period 1993-1994 417 sterilisations were performed on girls under 18, an increase of 33 from the preceding year.[5] Once again, for the same reasons, these figures would be at the lower order of what is actually occurring and she further suggests that there is anecdotal evidence that sterilisation procedures can be listed as apendectomies. In a related vein, Rhoades reports Australian research indicating that approximately 77% of deaths in a newborn intensive care unit followed withdrawal of life supporting treatment[6] As yet, no applications of this sort have come before the Family Court.

The Jurisdiction of the Family Court

The ancient common law jurisdiction for the protection of infants and persons of unsound mind is termed the parens patriae jurisdiction. In substance, this jurisdiction was exercised by the English courts, having been devolved from the Sovereign who, in feudal times, had a particular responsibility to less powerful and able members of the community. It eventually came to be exercised by the Lord Chancellor and the Courts of Chancery and was inherited by the superior courts of England's former colonies, including the United States of America, Canada, Australia and New Zealand.

In the 19th and early part of the 20th centuries, the parens patriae jurisdiction was used almost exclusively by the Courts for the protection of the property of minors. Upon application, they became wards in Chancery until the Court had dealt with the matter, and often they remained wards for many years.[7]

Unlike the Supreme Courts of the States and Territories, the Family Court of Australia is a creature of federal statute, the Family Law Act 1975 (Cth), and did not inherit the common law parens patriae jurisdiction. The question of jurisdiction was raised before Nicholson CJ in one of the first cases presented to the Family Court, In re Jane.[8] All parties agreed that the Court had jurisdiction but were less than certain whether its source was to be found in cross-vesting legislation or, as Nicholson CJ favoured, the Family Law Act itself.[9]

The matter arose again in a case stated to the Full Court of the Family Court, In re Marion.[10] Due to differing judgments within the Full Court on the power of parents and guardians to consent to the sterilisation procedure at issue, the matter was taken on appeal to the High Court and reported as Secretary, Department of Health and Community Services v JWB and SMB ("Marion's case").[11]

The jurisdiction was explained in the majority judgment of Mason CJ, Dawson, Toohey and Gaudron JJ in the following terms:

It seems clear that the 1983 amendments [to the Family Law Act] were intended to, and did, confer jurisdiction on the Family Court similar to the parens patriae jurisdiction, without the formal incidents of one of the aspects of that jurisdiction, the jurisdiction to make a child a ward of the Court.[12]

Their Honours also noted that:

As the Family Law Act now stands, s63(1) confers jurisdiction on the Family Court "in relation to matters arising under this Part". Section 64(1) of the Act provides;

"In proceedings in relation to the custody, guardianship or welfare of, or access to, a child -


(c) ... the court may make such order in respect of those matters as it considers proper, including an order until further order."[13]

Their Honours left open the question whether the jurisdiction for authorisation of this procedure stems from statute or the parens patriae jurisdiction:

Whether the source of jurisdiction is to be found primarily in s64 along with s63(1) as the appellant argued, or in a much wider range of sections in Pt VII as the Commonwealth argued, it is clear that the welfare of a child is a "matter" which arises under Pt VII for the purposes of s63(1) and is, therefore, an independent subject which may support proceedings before the Family Court. Although there are limits on that jurisdiction, there is no doubt that it encompasses the circumstances of the present case.

What was achieved by the amendments of 1983 and was not rescinded by the change to the Act in 1987 was a vesting in the Family Court of the substance of the parens patriae jurisdiction, of which one aspect is the wardship jurisdiction. And we agree...that the fact that the Family Court "may not have the power to make a child a ward of the court does not...prevent it exercising the general parens patriae power with respect to children".[14]

Although their Honours referred to limitations to the jurisdiction, they may be seen to have been referring to limitations in a constitutional sense.[15] Similarly, in his dissenting judgment, Brennan J (as he was then) recognised the fact that the jurisdiction was extremely broad, although he stressed that it must be exercised with caution[16] and that it did not extend to sterilisation.[17] It is also clear that the jurisdiction goes beyond enlarging the capacity of parents or guardians to consent but is an independent jurisdiction of its own.[18]

The majority decision also considered the possibility of limitations on the jurisdiction of the Family Court in its exercise of the "welfare jurisdiction" arising from jurisdictional interaction with State laws beyond the Northern Territory. It however left the question open, as the child was the child of married parents and the marriage power s51(xxi) was clearly applicable. As said by the majority:

It is clear enough that a question of sterilisation of a child of a marriage arises out of the marriage relationship and that the sterilisation of a child arises from the custody or guardianship of a child. Therefore, jurisdiction to authorise a sterilisation is within the reach of the power of the Commonwealth... [19]

While the High Court judgment drew attention to possible inconsistencies with other State legislation, their Honours were not called upon to determine the issue.[20]

The issue did, however, arise in the subsequent High Court case of P v P,[21] a case stated in relation to questions of jurisdiction and constitutional law. The parents of an intellectually impaired young woman living in New South Wales applied to the Family Court for authorisation of a sterilisation procedure. The purpose of the procedure was set out in the application as the prevention of pregnancy and menstruation. The Guardianship Act 1987 (NSW) would have only permitted the Guardianship Board in that State to authorise the surgery to save the young woman's life or to prevent serious damage to her health. The Family Law Act imposes no such statutory restrictions but considers each application according to the best interests principle set out in s64(1) and with the guidance of Marion's case.

The parents, although divorced at the time of the application, had been married and the young woman was consequently a "child of the marriage" pursuant to the Family Law Act. A majority of the High Court (Mason CJ, Deane, Toohey and Gaudron JJ, with whom McHugh J agreed) found that the jurisdiction to authorise sterilisation came within the power of the Commonwealth and, more specifically, came within the marriage power. A smaller majority of the Court (Mason CJ, Deane, Toohey and Gaudron JJ) further held that the Family Court's jurisdiction prevails over that of the New South Wales Board given power to make a like decision (and by implication any similar Board) with McHugh J agreeing as to the general effect but expressing further views.[22]

As the Family Law Council discussion paper has recently pointed out, the jurisdiction of the State Guardianship Board is not ousted as a result of this decision, but the Board is prevented from intervening once the Family Court has exercised its jurisdiction.[23] A degree of forum shopping is therefore still possible.

With this context in mind, it is useful now to set out the gravamen of the High Court's decision in Marion's case followed by P and P,[24] in which the Full Court of the Family Court gave further consideration to the issues.

The High Court Majority's Decision in Marion's Case

The majority of the High Court in Marion's case confirmed that the consent of a court (normally the Family Court) is required for the performance of invasive medical procedures such as sterilisation. In considering and rejecting the argument that parents as guardians could consent to sterilisation the majority[25] examined the threshold issue of consent and adopted the principle applied previously in the House of Lords decision of Gillick v West Norfolk and Wisbech Area Health Authority ("Gillick's case").[26] This held that a minor is capable of giving informed consent when he or she "achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed".[27]

In the case of such a child, the High Court next considered whether sterilisation is an intervention which is, in any event, outside the scope of parental consent. The majority found that it was and that court authorisation was required. The significant risk that a wrong decision might be made and the particularly grave consequences flowing from the making of a wrong decision were important factors. Excluded from the requirement of court authorisation was a sterilisation procedure which is a by-product of surgery appropriately carried out to treat a malfunction or disease.[28]

Sterilisation was seen by the majority as involving more than medical considerations, rather also including the social and psychological effects of the procedure. The fact that sterilisation interferes with a "fundamental right to personal inviolability existing in the common law"[29] was particularly significant. Also considered was the possibility that parents and other family members may have conflicting interests about the suitability of the procedure which would influence their decision. Sterilisation was characterised by the High Court as a step of last resort in the following terms:

In the context of medical management, "step of last resort" is a convenient way of saying that alternative and less invasive procedures have all failed or that it is certain that no other procedure or treatment will work. The objective to be secured by sterilisation is the welfare of the disabled child. Within that context, it is apparent that sterilisation can only be authorised in the case of a child so disabled that other procedures or treatments are or have proved inadequate, in the sense that they have failed or will not alleviate the situation so that the child can lead a life in keeping with his or her needs and capacities.

It is true that the phrase "best interests of the child" is imprecise, but no more so than the "welfare of the child" and many other concepts with which courts must grapple. As we have shown, it is confined by the notion of "step of last resort", so that, for example, in the case of a young woman, regard will necessarily be had to the various measures now available for menstrual management and the prevention of pregnancy. And if authorisation is given, it will not be on account of the convenience of sterilisation as a contraceptive measure, but because it is necessary to enable her to lead a life in keeping with her needs and capacities.[30]

The Decision of the Full Court of the Family Court in P and P

P and P[31] was an appeal against the dismissal of an application for sterilisation, by way of hysterectomy, of a 17 year old young woman whose intellectual disability prevented her from giving consent to the procedure. After the jurisdictional issue discussed above was decided by the High Court, the case was heard by a single Judge of the Family Court and then by the Full Court (Nicholson CJ, Fogarty and Finn JJ). The Full Court reversed the trial Judge's decision and authorised the sterilisation procedure.

There were numerous differing findings, the most important of which were the Full Court's discussion of the proper approach to the "step of last resort" test laid down by the High Court majority in Marion's case and the question of guidelines.

i) The "Step of Last Resort"

The Full Court considered that, in reaching her conclusions, the trial Judge applied a comparison of the young woman's circumstances with those of a hypothetical young woman without the young woman's disabilities, i.e. that "sterilization should not be approved if it would not be contemplated in the case of an intellectually normal girl with similar epilepsy".[32] Such an approach has been suggested by the Family Law Council and the Human Rights and Equal Opportunity Commission ("HREOC"), and is used in some State Guardianship Board procedures.

The Full Court rejected this reasoning and said that it did not and could not answer the question which the application asks, namely, whether the procedure sought was a step of last resort in the best interests of the child. Such an approach was seen to distract the Court from its fundamental task of deciding whether, for the particular child in question, the procedure is necessary, to quote the majority judgment in Marion's case, to enable her "to lead a life in keeping with her own needs and capacities":[33]

The responsibility to assess the child's best interests is not furthered by compartmentalising one or more of her attributes and measuring the appropriateness of the proposed treatment against a hypothetical child. The fact of a distinction may be shown, but this is not a conclusion which satisfies the necessary enquiry. We read the majority's reference in Marion's case to determining whether a procedure is a step of last resort in the context of a child's needs and capacities, to this effect, ie., requiring an appreciation of the interaction of that child's abilities and disabilities when considering the proposed treatment.

If applied literally the test [suggested by the Family Law Council and HREOC] would mean that sterilisation could never be authorised other than for therapeutic medical reasons, because one would never contemplate the sterilisation of an intellectually normal 17 year old other than for such reasons.[34]

Brady has located a possible use of such a comparison: it is a helpful analytic tool in the information gathering and case assessment process by the representative appointed for the child in such cases rather than a basis for determining an application:

In attempting to identify options it is necessary to question whether or not the proposed procedure would be considered for an intellectually able child of the same age and gender. This line of questioning may identify latent unthinking or hidden discriminatory attitudes which may compromise the generation of options for the child. The "but for" test is utilised as a contrast against which the identified problem can be examined. Of itself it is an inadequate principle to resolve the question of sterilisation. Nevertheless it is a principle worthy of consideration and should not be ignored since it acts as a check and balance for biases.(emphasis added) [35]

ii) Guidelines

HREOC, which had intervened in the case, submitted that guidelines should be set down in a case of this nature to clarify the Court's wide discretion under the "best interests" principle. The Full Court agreed but held that such guidelines should be broad and that the following relevant considerations which Nicholson CJ proposed in Re Jane[36] and Re Marion (No 2)[37] "should prove of practical use to those considering problems of this nature":

(i) the particular condition of the child which requires the procedure or treatment;

(ii) the nature of the procedure or treatment proposed;

(iii) the reasons for which it is proposed that the procedure or treatment be carried out;

(iv) the alternative courses of treatment that are available in relation to that condition;

(v) the desirability of and effect of authorising the procedure for treatment proposed rather than available alternatives;

(vi) the physical effects on the child and the psychological and social implications for the child of :

(a) authorising the proposed procedure or treatment;

(b) not authorising the proposed procedure or treatment;

(vii) the nature and degree of any risk to the child of:

(a) authorising the proposed procedure or treatment;

(b) not authorising the proposed procedure or treatment;

(viii) the views (if any) expressed by:

(a) the guardian(s) of the child;

(b) a person who is entitled to the custody of the child;

(c) a person who is responsible for the daily care and control of the child;

(d) the child;

to the proposed procedure or treatment and to any alternative procedure or treatment.[38]

The Court[39] did not accept HREOC's submission that sterilisation should never be considered until the child had commenced menstruating. Referring to cases such as In re Jane[40] and Re W[41]where the evidence pointed to the distress occasioned or likely to be occasioned by menstruation, the Court said that it was not prepared to lay down an absolute prohibition.

The Full Court also made certain criticisms of the Family Law Council's proposals which are considered below.

The Limitations of Decisions to Date

A number of questions still remain to be answered, not least of which is the nature and type of case where the consent of a court is necessary for the carrying out of a medical procedure on a child or intellectually disabled adult. This is an area where legislative guidance is clearly necessary if the matter is not to be left to the lengthy process of judge-made law.

There are three particular categories of children for whom jurisdiction is yet to be considered within the ratio of Australian authorities so far decided.

First, the issue of ability to consent has not been a major focus of attention to date in sterilisation applications, as all the young women who have been the subject of Family Court proceedings have been severely intellectually disabled. However in the future there will undoubtedly be instances where intellectual capacity will be less clear-cut. The issue did arise in Re A[42] in relation to the 14 year old for whom a sex reassignment was sought. Mushin J said he was satisfied on the evidence that:

A understands the problem and, in general terms, the way in which it is proposed that such problem be resolved and further, that the child has expressed a desire that such resolution take place. However, I am not satisfied that A has sufficient capacity and maturity to fully appreciate all aspects of the matter and to assess objectively the various options available to him.

The requirement of full understanding of the proposed procedure is a high threshold drawn directly from the majority in Marion's case endorsing[43]the dicta of Gillick's case.[44] The evidence which would demonstrate a full understanding remains to be established in the Family Court and is a complicated matter.[45] Where established, it would give rise to a further question: can the Court exercise jurisdiction to over-ride a "Gillick-competent" child?

The issue arose before the English Court of Appeal in Re W [46] where a 16 year old young woman suffering from anorexia nervosa was refusing transfer to a hospital specialising in the treatment of eating disorders. The local authority applied under the Children Act 1989 (UK) for the Court to exercise its parens patriae jurisdiction and grant it leave to place her in a treatment facility and for medical treatment to be given to her if necessary without her consent. The trial Judge was satisfied that she had sufficient understanding to make an informed decision and this finding was fully supported by a consultant psychiatrist specialising in anorexia nervosa. The Court of Appeal, without disturbing this finding, held that the Court retained a residual power to order treatment against a minor's wishes and that competency which satisfies the dicta of Gillick's case does not give a child the power of veto. It is difficult to see why the same would not apply in a matter before the Family Court of Australia.[47]

Secondly, the Family Law Act was amended in 1987 following the agreement of all States except Western Australia to refer power in relation to ex-nuptial children to the Commonwealth Government. As a result, the Family Court of Australia was granted jurisdiction in a wide range of private law child related matters such as guardianship, custody and access. Some constitutional uncertainty exists in relation to the medical powers jurisdiction. [48] The High Court majority in P v P[49] not needing to decide the head of power, said sterilisation was within the reach of Commonwealth power but did not elaborate.

Thirdly, the majority judgment in P v P[50]may be read to have implied, in obiter, that s60H of the Family Law Act excludes the Family Court's exercise of the medical powers jurisdiction in relation to a child who is under the care of a person (which includes a State Welfare Authority) pursuant to child welfare laws.[51] Section 60H of the Family Law Act constrains the Court to only making an order which comes into effect after the operation of the child welfare law or with the written consent of the child welfare officer of the relevant State or Territory. If the Family Court's welfare jurisdiction is also excluded then, save for the two exceptions noted above, decision-making for such children would rest with State and Territory Supreme Courts and, (where provided for by statute), other local courts and tribunals.

It is unsatisfactory for such medical procedure matters to be left to eight different State and Territory jurisdictions as well as the Family Court.[52] Problems in relation to the development of a unified approach already exist as a result of the jurisdictional jigsaw puzzle of State and Territory child and adolescent protection laws and decision-making with respect to adults with disabilities. [53] It should not be exacerbated in the delicate arena of authorising medical procedures upon children.

Leaving the decision to so many jurisdictions can only work against facilitating the expectation issued by the High Court majority in Marion's case that judges develop guidelines to respond to the situations which come before the Court. Uniform State and Territory legislation could overcome this problem or, a similar result could be achieved by the referral of powers by the States with respect to the jurisdiction.[54] A third option would be for Commonwealth legislation based on the external affairs power pursuant to the United Nations Convention on the Rights of the Child. Each of these legislative approaches would need to address the issue of the type of cases in which jurisdiction is conferred.

Critics of the Family Court's Approach

The Family Court has not been without its critics, especially with respect to sterilisation decisions, some which are as follows:

* Multi-disciplinary tribunals established in some States are set up for the purpose of decision-making with respect to people with disabilities whereas the Court is considered to lack the expertise to adequately scrutinise medical and other professional reports.[55]

* Unlike the Court, the Victorian and New South Wales Guardianship Boards when examining sterilisation applications, have as a matter of convention, at least one woman member who, in appropriate circumstances, has a one-to-one discussion with the woman for whom the application is made.[56]

* Judges have been criticised for placing undue importance on the evidence of medical practitioners, who have a strong tendency to support medical intervention, and, implicitly, for underestimating the contributions of psychologists and social workers, who are more likely to support alternative courses of action, such as menstrual management programs.[57]

* The medical evidence relied upon by the Court is seen to have excluded recent research by medical scientists which has critically investigated long held assumptions about the nature and purpose of reproductive systems.[58]

* The fact that many of the earlier cases in which sterilisation was authorised involved premenarchal young women has been used to illustrate the Court's penchant for accepting evidence of anticipated rather than real difficulties, and for failing to accept that sterilisation is a step of last resort.[59]

* Some parents of disabled children resent what they see as an unnecessary intrusion by the legal system into their parental rights and responsibilities.[60]

One of the problems surrounding judge-made law is that it is a slow process and may be very expensive for the parties involved. As the majority judgment of Mason CJ, Dawson, Toohey and Gaudron JJ noted in Marion's case:

[W]e acknowledge that it is too costly for most parents to fund court proceedings, that delay is likely to cause painful inconvenience for and that the strictly adversarial processes of the court is very often unsuitable for arriving at this kind of decision. These are clear indications of the need for legislative reform, since a more appropriate process for decision-making can only be introduced in that way. The burden of the cost of proceedings by parents would in the meantime, of course, be alleviated by the application being made by a relevant public body pursuant to s. 63C(1) of the Family Law Act.[61]

It was disappointing to read the majority's view that such matters might be better dealt with by a tribunal.[62] The majority commented to the effect that it was too costly for most parents to fund court proceedings, that the delay was likely to cause painful inconvenience and that the strictly adversarial process of the court was very often unsuitable for arriving at a decision in cases of this nature. With respect, their Honours may have confused the slow process of judge-made law, with the situation which comes about when that law has been clarified.

Their Honours also seem to have under-estimated the inquisitorial nature of Family Court proceedings where children's welfare is concerned. It has long been established that Family Law Act proceedings involving children, and particularly those in which the Court is exercising its parens patriae jurisdiction, are not governed by the same adversarial procedures as are disputes relating to financial matters. The parens patriae jurisdiction provides one of the few examples of a common law jurisdiction which has considerable inquisitorial features and tends, in most cases, to be adversary in form only.

Illustrations of the Family Court's flexibility and responsiveness include the following:

* The Family Law Rules provide a general power to dispense with compliance with procedural rules,[63] to call any person before it as a witness,[64] and to appoint an expert to inquire into and report upon any issue of fact or opinion.[65]

* A new simplified procedures scheme for all matters commenced in January 1996.[66]

* In children's matters generally, the Court is currently seeking comment on proposals for an approach to children's representation which is better informed by a social science perspective[67] (see below).

For medical procedure cases in particular:

* The Court has devised simple rules and case management guidelines which will enable medical procedure applications to be made quickly and economically.[68]

* All relevant information, which can include reputable journal and research material,[69] is to be placed before the Court.

* Specially designated Judges will be assigned to hear matters that proceed to determination.[70]

* The Court has adopted a liberal view of standing to bring proceedings.[71]

* Previous cases has been greatly aided by the Victorian Public Advocate,[72] and relevant government departments[73] and such assistance has been an important factor in the development of protocols between the Court and "key stakeholders" in both Victoria and Queensland.[74]

The Involvement of the Family Law Council

The issues of who should legislate in this area, who should have jurisdiction and how that jurisdiction should be exercised have been canvassed recently by the Family Law Council which is a body that provides advice to the Commonwealth Attorney-General.

In October 1993 the Council issued a discussion paper which sought comment on a number of issues relating to human rights aspects of the sterilisation of minors and the proper role of the law in regulating such procedures.[75] There was overwhelming support for the view that such sterilisation should be restricted to exceptional circumstances or as a last resort and most responses supported the involvement of an external authority. The paper sought responses on [inter alia] what legislative model should be adopted for regulating sterilisation of children, what factors should be taken into account by decision makers and what medical procedures other than sterilisation should require court authorisation.

In November 1994 the Family Law Council issued its report to the Attorney-General, Sterilisation and Other Medical Procedures on Children. This contained a number of recommendations including the following:

* there should be a new division in the Family Law Act regulating sterilisation of young people;

* the legislation should provide that it is unlawful to sterilise a child under 18 years except in prescribed circumstances;

* any sterilisation must be authorised under the legislation. The consent of the child and her/his parent(s) is not sufficient;

* the legislation should provide penalties for the performance of unauthorised sterilisation procedures; and

* medical procedures other than sterilisation should continue to be governed by the general provisions of the Family Law Act.

The Council considered that applications for sterilisation should be governed by a three stage decision-making process:

* Stage 1 - The legislation should indicate that sterilisation cannot be authorised (i) for eugenic reasons, (ii) purely for contraceptive purposes, (iii) as a means of masking or avoiding the consequences of sexual abuse, or (iv) prior to the onset of menstruation based on predictions about future problems related to menstruation.

* Stage 2 - The legislation should also provide that no person under 18 shall be sterilised unless the procedure is necessary to save life or to prevent serious damage to the person's physical or psychological health. In determining whether these circumstances exist the decision maker must have regard to whether the feasibility of less permanent means of contraception has been explored, where relevant, and an evaluation of the person's response to menstrual management.

* Stage 3 - The application still should not be approved unless the decision maker considers that the procedure would be in the child's best interests.

The Council said that the Family Court should be given power to hear applications under the proposed new provisions of the Family Law Act in all States and Territories in respect of all applications for sterilisation relating to children under the age of 18. Only specially trained judges should hear such applications and the Court's policy should be that a hearing should only occur after all options have failed to produce a satisfactory outcome for the parties. Furthermore, any person under the age of 18 who is the subject of an application for sterilisation must have independent legal representation in the event of a court hearing and the costs associated with this should be met by the Commonwealth Government.

Underpinning these recommendations is the Council's conclusion that sterilisation requires a unique and special legal response because of its radical and irreversible nature and the fact that it involves fundamental interference with bodily integrity.

The Full Court in P and P[76] expressed criticisms of the Council's recommendation that sterilisation should never be authorised in certain circumstances. [77] Save for its agreement with the Council concerning sterilisation for eugenic reasons,[78]the Court did not accept that an absolute prohibition was appropriate in the cases set out under Stage 1 of the Council's framework described earlier in this article. The Full Court said:

We doubt the value of such proscriptions. Experience and indeed this case itself demonstrates that these issues rarely, if ever, arise singly and there is thus little purpose in stating them in the form suggested by the Commission. We certainly would not be prepared to say that a combination of some or all of these factors could never justify sterilisation; indeed we would say that the contrary was the case. Further, while it might be true that in most cases one such factor would not justify sterilisation taken by itself, we are not prepared to categorically state that such a circumstance could never arise.[79]

The Full Court also stressed that it did not cavil with the proposition that sterilisation will not protect against sexual abuse but considered that the Court should have regard to the pregnancy which may follow it and the potential consequences upon the child's welfare and freedom:

We would nevertheless be concerned if the burden placed on the carers was to be so high as to require them to render a child such as Lessli a virtual prisoner. We think that there is much to be said for the approach of Lessli's mother in this case, which according to the evidence, is to enable Lessli to live as open a life as possible, within her capacities. However it must be recognised that such an approach carries with it certain risks. In Leslie's case one of those risks is involvement in sexual behaviour and possible pregnancy, the latter of which is a consequence which sterilisation would eliminate.


As we have taken some length to explain, in the instant case, the relevance of sterilisation to preventing pregnancy is inextricably connected to: the severity of Lessli's intellectual disability, the lack of meaning pregnancy would hold, the distress it would bring, her particular neurological condition and the effect of pregnancy upon it and the adverse consequences of contraceptive medications for Lessli.

We envisage that there are many cases where a child with an intellectual disability is not "Gillick-competent" for the purposes of medical decision-making but has the capacity or potential to understand and want a relationship and/or children. Such women are likely to live and interact much more broadly in the community than those with profound disabilities. This brings with it an attendant risk of sexual activity; events of choice and pleasure, but also the harm of sexual assault and victimisation.[80]

For reasons noted earlier in this article, the Full Court also rejected the Family Law Council's conclusion that sterilisation should never be performed prior to the onset of menstruation.

The role of the separate representative

The separate representative is a legal advocate appointed by the Court to safeguard and advance the interests of the child who is the subject of the proceedings.[81] Although they may be appointed in a wide range of circumstances, medical procedure cases are one of thirteen case types identified in the Full Court decision of Re K[82] where an appointment should normally be made. The Court said, however, that in cases where a party was adequately representing the child's interests, a separate representative need not be appointed[83] and cited the examples of the Public Advocate in re Jane[84] and the Secretary of the Northern Territory Department of Health and Community Services in Marion's case.[85]

The role and function of the separate representative has been discussed extensively in a number of previous cases.[86] In Pand P, the Court stressed that it was highly desirable for a separate representative to be appointed at the earliest possible stage of the proceedings and expressed broad agreement with the following submission summarising the role of the separate representative:

The separate representative ought to:-

1. Act in an independent and unfettered way in the best interests of the child.

2. Act impartially, but if thought appropriate, make submissions suggesting the adoption by the Court of a particular course of action if he or she considers that the adoption of such a course is in the best interests of the child.

3. Inform the Court by proper means of the children's wishes in relation to any matter in the proceedings. In this regard the separate representative is not bound to make submissions on the instructions of a child or otherwise but is bound to bring the child's expressed wishes to the attention of the Court.

4. Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the Court.[87]

5. Test by cross examination where appropriate the evidence of the parties and their witnesses.

6. Ensure that the views and attitudes brought to bear on the issues before the Court are drawn from the evidence and not from a personal view or opinion of the case.

7. Minimise the trauma to the child associated with the proceedings.

8. Facilitate an agreed resolution to the proceedings.[88]

With respect to sterilisation and other parens patriae cases the Court added that the separate representative has a primary duty to establish whether the child in question is Gillick competent. Such a threshold exercise determines whether parental consent is valid or not and therefore whether a negotiated alternative to court proceedings is a viable and effective solution.[89]

The Court's attention and emphasis upon the involvement of separate representation has both jurisprudential and practical elements. At a broad theoretical level, the appointment is viewed as consistent with furthering the rights of children as required by the United Nations Convention on the Rights of the Child.[90] The inclusion of a party representing the interests of the child also serves to emphasise the child-focused and inquisitorial (as opposed to adversarial) nature of welfare proceedings. In practical terms, the early appointment of a skilled representative for the child can do much to provide alternative options and responses and to facilitate (where possible) means by which the young person's views can be expressed.

The task can be a formidable one and is better approached by a team which combines special legal and social science skills. To this end, the Court is considering a team approach whereby separate representatives and, usually but not necessarily, Court Counsellors work jointly on cases within their spheres of expertise.[91] Medical procedure cases present particular complexities and, in addition to discussions with legal aid bodies concerning the need for a specialist pool of separate representatives, there is scope, in principle, for the social science component of the team to be drawn from sources beyond the Family Court Counselling Service.


The right of children to make decisions concerning major medical treatment has been a matter of judicial and community concern in recent years. It is now established that authorisation must be gained from a competent legal authority. Final decisions remain to be taken over questions of jurisdiction as discussed in this article and there are questions of law yet to be settled.

The Family Court's authority is sought in circumstances which are meant to be a last resort. This necessarily begs the question of the adequacy and availability of services, supports and resources for children and families where major medical and disability issues arise. The procedural innovations discussed in this article reflect the Court's responsiveness to critique and suggestion. They can do much in individual cases but it is ultimately the service landscape which makes the most enduring difference to quality of life and the protection of the rights of children.


[*] Chief Justice, Family Court of Australia.

[**] Senior Legal Advisor to the Chief Justice, Family Court of Australia.

[***] Legal Associate to the Chief Justice, Family Court of Australia.

[1] Re A [1993] FamCA 68; [1993] FLC 92-402; see also the discussion by Millbank "When is A Girl A Boy? Re A (A Child) (1995) 9 Australian Journal of Family Law 173.

[2] Re Michael [1994] FLC 92-471.

[3] The applicability of international human rights instruments such as the United Nations Convention on the Rights of the Child and the Declaration on the Rights of the Mentally Retarded Persons is beyond the scope of this paper, see for example, Nicholson A, "The Medical Treatment of Minors and Intellectually Disabled Persons - U.N. Convention on the Rights of the Child, Article 23" in First World Congress on Family Law and Children's Rights - Congress Papers, 1994.

[4] Wilson J, Carlson G, Taylor M & Griffin J Menstrual Management and Fertility Management for Women who have an Intellectual Disability : An Analysis of Australian Policy (Report funded by the Commonwealth Department of Health, Housing and Community Services, 1992)

[5] Brady "The Rights of the Child to be Heard. The Extended Jurisdiction - Potential Hearing Impairments in the Legal Process" 29th Proceedings of the Australian Legal Convention 1995 at 11-2.

[6] Rhoades H, "Sterilisation, Gender Reassignment and Life Support - Mapping the Welfare Jurisdiction of the Family Court" (1994) 10(1) Australian Family Lawyer 25 at 32.

[7] A useful discussion of its history is to be found in the reasons for the decision of La Forest J in the case of Re Eve (1986) 31 DLR (4th) 1, in the Supreme Court of Canada.

[8] [1989] FLC 92-007.

[9] Ibid at 77,241.

[10] [1991] FLC 92-193.

[11] [1992] HCA 15; (1992) 175 CLR 218.

[12] Ibid at 256. In Re W (a Minor) [1992] 4 All ER 627, a medical treatment application, the English Court of Appeal referred to its earlier decision in Re M and anor (minors) [1990] 1 All ER 205 and reiterated that the parens patriae jurisdiction is equally exercisable regardless of whether the child is a ward of the court; at 631 per Lord Donaldson MR, at 640 per Balcombe LJ, at 646 per Nolan LJ.

[13] Ibid at 257.

[14] Ibid.

[15] This seems to be reinforced by their comments, ibid at 258-9, under the heading "The nature of the welfare jurisdiction" where they refer to older cases and remark at 258: "The more contemporary descriptions of the parens patriae jurisdiction over infants invariably accept that in theory there is no limitation upon jurisdiction [citing In re X. (A Minor) [1975] Fam. 47 at pp. 51-2, 57, 60-1, 61-2]."

[16] [1992] HCA 15; (1992) 175 CLR 218 at 280.

[17] Ibid at 282. See also at 294-5 per Deane J and at 317-8 per McHugh J where the latter adopted the reasoning of the majority on the jurisdictional question.

[18] Ibid at 257 per Mason CJ, Dawson, Toohey and Gaudron JJ and at 318 per McHugh J.

[19] Ibid at 261.

[20] Ibid at 263 making reference to the Children (Care and Protection) Act 1987 (NSW).

[21] [1994] HCA 20; (1994) 181 CLR 583.

[22] The Family Court's jurisdiction prevails as a consequence of s109 of the Constitution. That section resolves inconsistencies between State and Commonwealth power in favour of the Commonwealth. McHugh J departed from the majority on this aspect as his Honour did not characterise the proceedings before the Board as proceedings in a Court and considered that it was the making of an order which attracted the operation of s 109 of the Constitution.

[23] Family Law Council, Sterilisation and Other Medical Procedures on Children - A Report to the Attorney-General (Australian Government Publishing Service, Canberra, 1994) at 31-2.

[24] [1995] FLC 92-615. This was the hearing of an appeal against the orders of the trial Judge following the High Court's determination of the case stated.

[25] [1992] HCA 15; (1992) 175 CLR 218 at 237-8.

[26] [1985] UKHL 7; [1986] AC 112.

[27] Ibid at 183-4.

[28] [1992] HCA 15; (1992) 175 CLR 218 at 250.

[29] Ibid at 253.

[30] Ibid at 259-60.

[31] [1995] FLC 92-615.

[32] Ibid at 82, 146.

[33] [1992] HCA 15; (1992) 175 CLR 218 at 260.

[34] [1995] FLC 92-615 at 82, 147.

[35] Brady, "The Rights of the Child to be Heard" op cit at 23.

[36] [1989] FLC 92-007.

[37] [1994] FLC 92-448.

[38] [1995] FLC 92-615 at 82,151.

[39] Ibid at 82,150.

[40] [1989] FLC 92-007.

[41] (unreported, Family Court of Australia, Chisholm J, 10 April 1995).

[42] [1993] FamCA 68; [1993] FLC 92-402 at 80,115.

[43] [1992] HCA 15; (1992) 175 CLR 218 at 237.

[44] [1985] UKHL 7; [1986] AC 112.

[45] See the review of legal and psychological literature in Morgan "Controlling Minors' Fertility" [1986] MonashULawRw 10; (1986) 12 Monash University Law Review 161 and Parkinson "Children's Rights and Doctors' Immunities: The Implications of the High Court's Decision in Re Marion" (1992) 6 Australian Journal of Family Law 101.

[46] [1992] 4 All ER 627.

[47] See also Rhoades op cit at 25; Nicholls "Keyholders and Flak Jackets - Consent to Medical Treatment for Children" [1994] Family Law (UK) 81.

[48] See Seymour "The Role of the Family Court of Australia in Child Welfare Matters" (1992) 21 Federal Law Review 1 at 18-20; Family Law Council 1994 op cit at 30.

[49] [1994] HCA 20; (1994) 181 CLR 583 at 600.

[50] Ibid at 606, where Mason CJ, Deane, Toohey and Gaudron JJ said:

[I]n those cases where the jurisdiction of the Family Court was intended by the parliament to be excluded by reason of State or Territory welfare laws, s 60H of the Family Law Act makes specific provision to that effect. It is common ground that, in circumstances where L [the child] is not a child under the guardianship, or in the custody or care and control, of a person under a child welfare law, s 60H does not exclude the jurisdiction of the Family Court to make the proposed order in the present case.

[51] These are set out in Schedule 5 of the Family Law Regulations. Such children are usually subject to orders of the State or Territory Children's Court following proceedings for their care and protection.

[52] The Family Law Council 1994, op cit at 60- 2 sets out its consideration of this issue.

[53] See Rayner The Commonwealth's Role in Preventing Child Abuse - A Report to the Minister for Family Services (Australian Institute of Family Studies, Melbourne 1995) and Nicholson op cit.

[54] No reference of power is needed from the Territories as the Commonwealth already has a general legislative power to make law for the Territories.

[55] Tait et. al. "Legal Regulation of Sterilisation: The Role of Guardianship Tribunals in NSW and Victoria" (1994) 8 Australian Journal of Family Law 161.

[56] Ibid.

[57] Blackwood "Sterilisation of the Intellectually Disabled: The Need for Reform" (1991) 5 Australian Journal of Family Law 138; Wilson et. al. op cit..

[58] Brady "The Rights of the Child to be Heard" op cit at 4-9.

[59] Wilson et. al. op cit.

[60] See for example, In re S [1989] FamCA 80; [1990] FLC 92-124 at 77,818 where the report of a surgeon who had been engaged by the parents to carry out a hysterectomy was considered to reflect an "impatience over what he sees as the unwarranted intrusion of the Court and the bureaucracy into the right of parents of a severely retarded child to consent on her behalf to a hysterectomy...". See Family Law Council 1994 op cit at p8.

[61] [1992] HCA 15; (1992) 175 CLR 218 at 253.

[62] In respect of this issue see Nicholson op cit and Tait et. al. op cit.

[63] Family Law Rules, Order 4 Rule 1.

[64] Ibid, Order 30 Rule 5.

[65] Ibid, Order 30A Rule 3.

[66] Filipello and Newitt "Keys to Simplification - The New Family Court Procedures" (1995) 10(4) Australian Family Lawyer 17.

[67] Smith et. al. Representing the Child's Interests in the Family Court - Discussion Paper (Family Court of Australia, 1995)

[68] Family Law Rules, Order 23B. It should be stressed that this does not equal bringing cases to a rapid hearing without adequate time for the collation of information and exploration of options.

[69] In L and GM; Director-General, Department of Family Services and Aboriginal and Torres Strait Islander Affairs ("Sarah's case") [1993] FamCA 124; [1994] FLC 92-449 at 80,672-3, Warnick J held that the conventional rules of evidence ought not be strictly applied in medical treatment cases and that to exclude such views "would impose an intolerable burden on those involved in hearings such as this". See however the comments of counsel in Brady "The Rights of the Child to be Heard" op cit at 17-8 which hopefully pre-date the decision in Sarah's case. For a similar approach in a different context see Patsalou and Patsalou [1995] FLC 92-580 at 81,752-3 where the Full Court upheld the reference by a trial Judge in her judgment to various social science literature concerning the impact of inter-spousal violence on children.

[70] Case Management Guidelines, Paras 5.21 to 5.24.

[71] See the Full Court decision of Re Michael [1994] FLC 92-471 at 80, 891-2.

[72] In re Jane [1989] FLC 92-007.

[73] The Northern Territory Department of Health and Community Services in Marion's case.

[74] See Dittman "Medical Procedure Cases in the Family Court - the Role of Protocols" (forthcoming) Proceedings of the Second National Conference of the Family Court of Australia 1995; Brady "The Rights of the Child to be Heard" op cit. 16.

[75] Family Law Council, Sterilisation and Other Medical Procedures on Children - Discussion Paper (Family Law Council, Canberra, 1993).

[76] [1995] FLC 92-615 at 82,143ff.

[77] Family Law Council 1994 op cit at 52.

[78] "[E]ugenic considerations are intrinsically offensive and discredited scientifically and are thus also irrelevant", [1995] FLC 92-615 at 82,150. See also Goldhar op cit.

[79] Ibid.

[80] Ibid at 82,143.

[81] Separate representatives are appointed pursuant to s 65 of the Family Law Act and are funded through legal aid. In the absence of legislative guidance, their role has been principally evolved through decisions of the Family Court: see for example Smith et. al. op cit; Family Law Council, Involving and Representing Children in Family Law (Family Law Council, 1995); Family Law Council, Representation of Children in Family Law Proceedings (Family Law Council, 1989).

[82] [1994] FamCA 21; [1994] FLC 92-461.

[83] Re K ibid at 80,775-6. In Re Michael [1994] FLC 92-471, the Public Advocate brought the application for medical treatment of the child's heart condition and there was also a separate representative representing the child's interests.

[84] [1989] FLC 92-007.

[85] [1992] HCA 15; (1992) 175 CLR 218.

[86] Bennett and Bennett [1991] FLC 92-191, Re K [1994] FamCA 21; [1994] FLC 92-461, see also Smith et. al. op. cit.

[87] The Full Court in P and P [1995] FLC 92-615 at 82,157 considered that "it should usually be the role of Counsel for the separate representative to call the expert evidence, although not be limited to examination in chief of such witnesses. This does not, of course, preclude the parties from calling expert evidence of their own in appropriate cases."

[88] Ibid at 82,156-7. The Court also rejected submissions from the Human Rights and Equal Opportunity Commission that there should be a contradictor in each case and that a next friend should be appointed in each case. As to the issue of a contradictor role, see Re A [1993] FamCA 68; [1993] FLC 92-402 at 80,116 and Brady "Medical Procedure Cases in the Family Court - the Role of Protocols" (forthcoming) Proceedings of the Second National Conference of the Family Court of Australia 1995 at 10-1 who suggests that the separate representative should:

"seek out contrary opinion and test assumptions and affidavit materials particularly if they are of a speculative nature. What is preferable (and in my view a necessary condition for positive outcomes) is that this "testing" is utilised prior to court hearing and the outcomes filed, if needs be, for the court's consideration."
[89] See also Smith et. al. at p43.

[90] Re K [1994] FamCA 21; [1994] FLC 92-461 at 80,777.

[91] Smith op cit.

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