Commission submissions: P v P

IN THE FULL COURT FAMILY COURT OF AUSTRALIA AT SYDNEY

No. SY 4034 of 1989

BETWEEN: P. Appellant

AND: P. Respondent

AND: LEGAL AID COMMISSION OF NEW SOUTH WALES Separate Representative

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Intervener

OUTLINE OF SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

1. There is a substantial need for judicially stated guidelines and procedural safeguards in this area.

2. The exercise of the jurisdiction of the Family Court is directly linked to the child's capacity to consent and therefore the capacity to consent must be the first issue to be decided.

3. Submissions as to what are appropriate guidelines and submissions.

4. Submissions as to necessary procedural safeguards:

- effective legal representation - the child's right to be heard

Written submissions in relation to each of the above four matters are attached.

OUTLINE OF SUBMISSIONS AS TO THE NEED FOR DETAILED GUIDELINES AND PROCEDURAL SAFEGUARDS

1. Terminology

In these submissions the term "sterilisation" will be used - as it was in Secretary, Department of Health and Community Service v. J.W.B. and S.M.B. (1992) 175 C.L.R. 218 ("Marion's Case"), at p.229 - as shorthand for various surgical procedures including hysterectomy, vasectomy, ovariectomy and tubal ligation.

Although the Commission's submissions use this terminology, it is an essential submission of the Commission that as the invasiveness of sterilisation procedures varies enormously, the operation authorised (if any) must be the least invasive necessary for the child's welfare: Marion's Case, at p.259.

2. The basis of the need for detailed guidelines procedural safeguards in respect of sterilisation

2.1 Preamble

The Commission refers the Court to Article 7 of the Declaration on the Rights of Mentally Retarded Persons, which is scheduled to the Human Rights and Equal Opportunity Commission Act 1986 (Cth), which states:

"Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to higher authorities."

The Commission also refers to Marion's Case, at pp.259-260:

"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 the court must grapple. ... With the range of expertise available to them, judges will develop guidelines to give further content to the phrase 'best interests of the child' in responding to the situations with which they will have to deal."

This passage was adopted by a Full Court of this Court in Re K (1994) FLC 92-461, at p.80,773. Brennan J. in Marion's Case, at p.272, also called for "guidelines if not rules" to govern a court's power to authorise sterilisation.

It is therefore submitted - for the following reasons - that the clearest possible guidelines and procedural safeguards should be enunciated by this Court for this area.

2.2 The need for consistency

Over two years has passed since Marion's Case. This is the first opportunity that a Full Court has had to consider the formulation of conclusive or uniform guidelines as to this discretion under the Family Law Act 1975 (Cth) ("the Act").

However, some criteria have been established by single judges of the Family Court to assist decision-making in the cases that have come before them: see Re MM (1994) FLC 92-449 and Re Marion [No. 2] (1994) FLC 92-448 (note: in Re MM the trial judge was apparently not aware of the decision in Re Marion [No.2]). However, as the trial judge stated in this case (at A.B.45), assistance is likely to be gained by re-casting these relevant factors in the most comprehensive way.

Also, the issue of sterilisation is a matter on which there is potential for a divergence of views. For instance, compare the different - although overlapping - approaches of the Victorian Guardianship Board (as per its published guidelines on Division 6: "Powers of Board with Respect to Medical Procedures") ("Victorian Guardianship Board Guidelines") and the Family Court following Marion's Case.

Although it may be imprudent to compare the facts of cases based simply upon their reports, the extent to which courts have differed in their approach to decision-making in respect of sterilisation may be borne out by comparing two decisions of the Family Court which resulted in different decisions even though they appeared to have broadly similar facts: see Re Marion [No.2] and Re MM. See also the differing approaches in Re a Teenager (1988) 94 FLR 181 and Re Jane (1988) 94 FLR 1 and the discussion thereof in Blackwood, "Sterilisation of the Intellectually Disabled: The Need for Legislative Reform", (1991) 5 Australian Journal of Family Law (No. 2) 138, at pp.152-153.

2.3 The need for guidance

Generally the lack of judicial guidelines in this area has been regretted given the serious need for guidance: see Kennedy, "Patients, doctors and human rights" in Blackburn and Taylor (eds), Human Rights for the 1990's , (1991), at pp.90-91 (cited by Brennan J. in Marion's Case, at p.271); Blackwood, op.cit., at pp.142, 144, 149 and 161-¥ Parkinson, "Children's Rights and Doctor's Immunities: The Implications of the High Court's Decision in Re Marion", (1992) 6 Australian Journal of Family Law (No.2) 101, at p.l Dickey, "The High Court's Decision in Re Marion", (1992) 6 Australian Journal of Family Law (No.2) 97, at p.99.

Further, the existence of guidelines would better enable parents, guardians, carers and their advisers to determine accurately whether authorisation would be given by a court without having to go through the litigious process: note Marion's Case at pp.303-304 (per Deane J.) and at pp.319-320 (per McHugh J). This would save delay, expense, worry and uncertainty.

In addition, in at least one case since Marion's Case there has been quite some uncertainty as to the practical application of an important principle laid down by the majority of the High Court in Marion's Case: see Re MM, at pp.80,678 - 80,679.

2.4 To assist effective review of a decision to sterilise

Establishing guidelines and procedural safeguards would help ensure that the decision as to whether to sterilise is principled and therefore effectively reviewable: see Marion's Case, at pp.270-274 (per Brennan J.) and at pp.320-321 (per McHugh J.). See also Norbis -v- Norbis (1986) 161 CLR 513, at pp.519-520 (per Mason J. and Deane J.) and at pp.536-540 (per Brennan J.).

2.5 To assist the role of the child's legal representative

Uniform, established guidelines and procedural safeguards would help crystallise the role of the legal representative (or other representative) of the child's interests in sterilisation cases.

Whilst the Full Court judgment in Re K, at pp.80,773 - 80,775, makes it clear that a separate representative should normally be appointed in a sterilisation case, the extremely important role to be played by the separate representative in these cases will lack definition in the absence of clear guidelines and stated procedural safeguards. See also the later submissions on the role of the child's legal representative.

2.6 The gravity of the decision

Guidelines and procedural safeguards are necessary given that the consequences of an incorrect decision are particularly grave. In Marion's Case the majority held that sterilisation was a special case because there was a significant risk of a wrong decision and the consequences of a wrong decision were particularly grave. For these reasons the nature of the discretion exercised in these types of cases is fundamentally different from many of the other and more common discretions under the Act (cf. the comments in this respect by Heffernan J. in Re Guardianship of Eberhardy (1981) 307 N.W. 2d 881, cited with approval in Re Eve (1987) 31 D.L.R. (4th) 1, at p.33 - quoted at p.13 of these submissions).

Thus, the discretion is not, or at least should not be, a discretion which at the end of the day involves just the application of a general standard. Given the nature of the discretion here, it should more closely resemble a principled decision rather than a discretionary one guided by principles which have evolved empirically on a case-by-case basis: see Norbis -v- Norbis, at p.518 (cf. pp.533-534); Marion's Case, at p.259.

OUTLINE OF SUBMISSIONS ON THE EXERCISE OF JURISDICTION AND THE CHILD'S CAPACITY TO CONSENT

1. Jurisdiction

1.1 The Family Court has jurisdiction to make an order authorising sterilisation pursuant to the welfare jurisdiction of the Act: Marion's Case, at p.257.

1.2 Further, when the Family Court is seised of its jurisdiction in relation to the welfare of a child, its duty is to exercise its jurisdiction so as to decide whether an order should be made: Z.P. v. P.S. (1994) 68 A.L.J.R. 554, at p.557 (agreed with generally by Deane and Gaudron JJ., at p.569).

1.3 However, the jurisdiction to make an authorisation order is circumscribed. The Family Court can only exercise its discretion to make an order authorising sterilisation if it is satisfied at the threshold that the child concerned cannot consent to the operation and will never be able to do so: see Marion's Case, at pp.238-239, 250, 306 and ŀ Re Marion [No. 2], at pp.80,663, 80,ʛ Re D (a minor) (wardship: sterilisation) [1976] 1 All ER 326, at p.ŏ Stump v Sparkman (1978) 435 US 349, cited by La Forest J in Re Eve, at p. Family Law Council Discussion Paper, "Sterilisation and Other Medical Procedures on Children," October 1993 ("the Family Law Council Paper") at p. Bright Committee, The Law and Persons with Handicaps, Vol.2, Intellectual Handicap, Government Printer, South Australia, 1981, ("Bright Committee Report") as cited in Goldhar "The Sterilization of Women with an Intellectual Disability" (1991) 10 University of Tasmania Law Review 157, at p.181.

1.4 Accordingly, the first decision that must be made by a Court is whether the child has achieved or will ever achieve "a sufficient understanding and intelligence to enable him or her to understand fully what is proposed": Gillick v West Norfolk AHA [1986] AC 112 ("Gillick's Case"), at pp.183-184, as followed in Marion's Case, at p.237. See also Re Marion [No.2], at p.80,663.

Thus, it is submitted that if this question is answered affirmatively then the Family Court would have no further role in the matter. The only proper exercise of its jurisdiction would be to dismiss the application and grant ancillary injunctive relief if necessary (see Re MM, at p.80,683).

Note:

On the capacity of the child to give present or future consent, useful references are: Marion's Case, at pp.232, 237-239, 250 and IJ In the Matter of P.Y. and J.Y, (1993) 14 Human Rights Law Journal 280, at p.280 (Supreme Court of Newfoundland, St. John's); Gamble, "Re-examining Children's Consent to Medical Treatment," Australian Journal of Social Issues, Vol. 27 No. 3 August 1992, at pp.198-Ç Re X, at pp.376-ź Re D (a minor), at p.ŏ Stump v. Sparkman, cited by La Forest J. in Re Eve, at p. the Family Law Council Paper, at p. Bright Committee Report as cited in Goldhar op. cit., at p.181.

2. The capacity of children to consent to medical treatment

2.1 The law is clear that a child can give legally informed and effective consent to medical treatment in particular circumstances: Marion's Case, especially at pp.237-238, 295-296, 315-Ľ Gillick's Case, especially at pp.169, 186.

2.2 The law as stated in Marion's Case and Gillick's Case is consistent with international law as to the rights of the child: see Article 12 of the Convention on the Rights of the Child.

2.3 It is submitted that consideration should also be given to a child's ability to give informed consent despite an intellectual disability: "There is nothing inherent in mental handicap....that prevents a person from providing competent consent to a sterilisation": see "Sterilizing the mentally-handicapped: Who can give consent?", Canadian Medical Association Journal, vol.22 (1980), cited in the Bright Committee Report, at p.125.

This view was echoed by the High Court in Marion's Case, at p.239.

2.4 There is some authority to suggest that a court can override the informed consent of the child (see Re R [1992] Fam. Austin "Righting a child's right to refuse medical treatment" (1992) 7 Otago Law Review 578, especially at pp.578, 583-ɏ Re J (1 July 1992) The Times, p.3). However, it is submitted that the better view, and the view most consistent with Marion's Case, is that a court has no power to override the informed consent of a child or, if it does have such a power, it should never as a matter of discretion exercise that power except, perhaps, in extreme circumstances: see Austin, op. cit., at pp.586, 589-ɏ Re R, at p.28, Marion's Case, at pp.237-238.

OUTLINE OF SUBMISSIONS IN RESPECT OF APPROPRIATE JUDICIAL GUIDELINES

1. Legal nature of the proposed guidelines

1.1 It is apparent that judicial guidelines can have varying degrees of weight: see the High Court's decision in Norbis -v- Norbis at pp.519-520 per Mason J. and Deane J.; at pp.533-534 per Wilson and Dawson JJ. and at pp.536-540 per Brennan J.

1.2 At p.80,773 of Re K this Court explained the exact legal nature of the guidelines that were being laid down in that case: it is submitted that the guidelines proposed for this area should be of at least similar legal weight.

In Norbis v. Norbis the majority of the High Court (Wilson, Brennan and Dawson JJ.) were against the pronunciation of binding guidelines: the reasoning behind the majority's view is encapsulated in the following excerpt from the judgement of Gibbs C.J. in Mallet v. Mallet (1984) 156 C.L.R. 605, at pp.608-609:

"It is proper, and indeed often necessary, for the Family Court, in dealing with the circumstances of a particular case, to discuss the weight which it considers should be given, in that case, to one factor rather than another. It is understandable that practitioners, desirous of finding rules, or even formulae, which may assist them in advising their clients as to the possible outcome of litigation, should treat the remarks of the court in such cases as expressing binding principles, and that judges, seeking certainty, or consistency, should sometimes do so. Decisions in particular cases of that kind can, however, do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered."

However, in the case of an application for authorisation of a sterilisation procedure the discretion - although statute-based - is clearly one that is largely fettered even though the test is expressed in words of general application. Given the nature of the discretion here, it should more closely resemble a principled decision rather than a discretionary decision, even though it remains discretionary: see Norbis -v- Norbis, at p.Ȇ Marion's Case, at pp.259-260. The only way this can be achieved is for this Court to state firm, although not binding, guidelines.

2. Criteria to be considered by the court

It is submitted that the criteria to be applied by a court can be seen to fall into three general categories:

generally binding authorising criteria; generally binding proscriptive criteria; and general guidelines

as to the exercise of the discretion to authorise sterilisation.

2.1 Generally binding authorising criteria

Sterilisation will (generally) always be in the best interests of the child if the Court is clearly satisfied that it is necessary or incidental to conventional medical treatment (including surgery) for the preservation of life, prevention of grave illness or correction of some serious malfunction: this would appear to be the unanimous view of the High Court in Marion's Case, at pp.253, 274, 278-279, 289, 295 and 321.

It appears clear that in these circumstances the surgery is within the powers, rights and duties of a guardian under s.63E(1) of the Act and therefore does not require judicial authorisation (Marion's Case, at p.253), although out of prudence doctors or guardians may wish to seek such authorisation: Marion's Case, at p.279 per Brennan J.; cf. Parkinson, op. cit., at pp.107-108.

2.2 Generally binding proscriptive criteria

Sterilisation will generally never be in the best interests of a child by reason only of any of the following circumstances or a combination only thereof:

2.2.1 solely for eugenic or "public welfare" reasons. On this submission, useful references are: Marion's Case, at pp.275, 295, 300 and Ł Family Law Council Paper, at p. In re Elizabeth (1989) 13 Fam.L.R. 47, at p.58.

2.2.2 solely to prevent the consequences of sexual abuse. On this submission, useful references are: Marion's Case, at p.276 per Brennan J.; Re a Teenager, at p.¸ the Family Law Council Paper, at p. Blackwood, op. cit., at p.™ Re MM, at pp.80,675, 80,682- 80,683 where it was noted that sterilisation may increase this risk; In re Elizabeth, at p.60.

2.2.3 solely for contraceptive purposes. On this submission, useful references are: Marion's Case, at pp.260, 276, 321(cf. pp.322-323); Re Marion [No.2], at pp.80,665-80,ʚ the Family Law Council Paper, at p.32 (on the basis that it is too radical a form of contraception for children).

2.2.4 solely to remedy hygienic or other usual and practical problems of menstruation. On this submission, useful references are: Marion's Case, at p.Ł Re Eve, at p.32. But cf. Re Jane, at p.21.

2.2.5 solely for the purpose of easing the burden on persons responsible for caring for the child. On this submission, useful references are: Marion's Case, at pp.276, 295, 300, ł Re Marion [No.2], at pp.80,665-80,ʚ note Re Jane at pp.20, In re Elizabeth, at p.

2.2.6 if the operation is not the last resort: Marion's Case, at pp.259 (see also at p.276).

2.3 Guidelines for the exercise of discretion to authorise sterilisation

Sterilisation, in certain limited circumstances, may be authorised by the Family Court when it is in the best interests of the child and it is the last resort. Although such authorisation is discretionary, and while there is no fixed rule as to what constitutes the best interests of the child, the discretion is not at large. Therefore, the Court making the decision should have regard to at least the following matters which are likely to be relevant in the exercise of discretion in matters of this type:

2.3.1 the physical, mental or psychological health and capacity of the child with and without sterilisation and the severity of the problems to be experienced by the child in the absence of sterilisation. On this submission, useful references are: Marion's Case, at pp.259, Ł Re Jane, at p. Re X [1991] 2 N.Z.L.R. ŭ Re Marion [No.2], at p.80,665.

2.3.2 the age of the child - bearing in mind the fact that sterilisation must be a treatment of last resort in the sense that no alternative and less drastic treatment would be appropriate and effective, sterilisation should ordinarily not be considered justified until the child has actually commenced menstruation. On this submission, useful references are: Marion's Case, at p.250, and at p.305 per Deane J.; Re X, at pp.377, ź Simpson, "Judges at Odds; Who should decide whether an intellectually disabled girl should be sterilised?," Legal Service Bulletin, Vol.14 No.3, June 1989, at p.h Matter of Terwilliger, (1982) Pa. Super., 450 A.2d 1376, at p.է Re Grady (1981) N.J. 426 A.2d 467, especially at p.Ǩ Victorian Guardianship Board Guidelines. But cf. Re Jane, at pp.20, 21.

Note: of the seven cases - prior to this case - to come before the Family Court since 1988 of which the Commission is aware (Re Jane, Re a Teenager, Re Elizabeth, Re MM, Re Marion [No.2], Re M, In re S (1989) 13 Fam. L.R. 660), only in two had the child commenced to menstruate (Re MM and Re Marion [No.2]).

2.3.3 whether present and future alternative remedies (including counselling, contraception, pharmacological alternatives, training, supportive nursing and care) have been attempted and considered. On this submission, useful references are: Marion's Case, at p.ă Re Jane, at p. Bright Committee Report, op.cit., at p.~ Goldhar, op.cit.,at p.185.

2.3.4 the views of the child. See separate written submissions within on this point. Other references on this submission are: Marion's Case, at p.ú s.64(1)(b) of the Act; the Family Law Council Paper, at p. Gamble, op. cit., at p. Æ Bright Committee Report, as cited in Goldhar, op. cit., at p.181. See also Re Eve, as cited in Goldhar, op. cit., at p.184.

2.3.5 the child's present and future capacity to be involved in a human relationship, to act as a parent and comprehend sexual relationships, procreation and parenting. On this submission, useful references are: Marion's Case, at pp.305-307, 321 and Ń Re Jane, at p. Re X, at p.376. Note also Re Eve, at p.31 and generally the views of Scott, "Sterilisation of Mentally Retarded Persons: Reproductive Rights and Family Privacy" [1986] Duke Law Journal 806.

2.3.6 the detrimental consequences of the child having to continue to menstruate. On this submission, useful references are: Marion's Case, at pp.244, 305, Ł Re X, at p.Ű Re Jane, at p. Re Eve, at p. See also S.C.Hayes and R.Hayes, "Contraception for legally handicapped people: legal and ethical issues," Healthright, Vol.1, No. 4, August 1982, at p.7.

2.3.7 the views of the parents. On this submission, useful references are: Marion's Case, at p.251, 253, 259-260, 298-299, 305-IJ Re Jane, at p. Bright Committee Report, as cited in Goldhar, op.cit., at p.µ Re a Teenager, at pp.212-219.

2.3.8 the effect of sterilisation on (a) the long term physical or mental health of the child, and (b) the long term emotional well-being of the child and his or her important relationships. On this submission, useful references are: Marion's Case, at pp.251, 252, 267, 296, 303 and Ł Re MM, at p.80,ʢ the Family Law Council Paper, at p. Re Eve, at p. Goldhar, op.cit., at p.178 and Re X, at p.377.

2.3.9 the burden on persons responsible for caring for the child insofar as that may affect the overall welfare of the child. On this submission, useful references are: Marion's Case, at pp.252, 268, 300-301, İ Re Marion [No.2], at pp.80,665-80,ʚ Re Jane, at p. Re X, at p.Ź Re a Teenager, at p.ç In re Elizabeth, at p.63. Cf. s.64(1)(bb)(v) of the Act which makes it mandatory to consider this issue.

2.3.10 whether the operation is substantially therapeutic or non-therapeutic (despite the inherent difficulties with the definition of these terms, it will usually be more difficult to establish that a non-therapeutic operation will be in the best interests of the child). On this submission, useful references are: Marion's case, at pp.250, Ĩ Re Jane, at pp.679, 689-690.

2.3.11 whether the operation is the least invasive surgical procedure necessary for the child's welfare. For example, would a tubal ligation be all that is required to meet the child's needs as in Re B [1988] 1 A.C. 199, at pp.205, 209.

2.3.12 would the same procedure be recommended for solving the same problem for a child without an intellectual disability: Victorian Guardianship Board Guidelines, at p.88. This can be a very helpful and important consideration given the seeming disparity - on one view - of expert medical testimony which has been given in sterilisation cases on similar medical issues : cf. the within case, Re Marion [No.2], at p.80,667, Re MM, at p.80,676 and In re Elizabeth, at p.60.

2.3.13 any other matters that the Court thinks relevant including any matters which must - by statute - be considered by the Court when considering what is in the best interests of the child: cf. the provisions of the proposed new Division 10 of the Act as contained in the Family Law Reform Bill 1994 (Cth).

2.3.14 the child's prognosis as regards his or her intellectual and general capacity to deal with the relevant factors raised above. On this submission, useful references are: Marion's Case, at pp.298 and 305-IJ Re Jane, at p.20.

3. Standard of Proof

Particular attention, detail and care in respect of the burden of proof should be observed, notwithstanding that it is the normal civil standard of proof which rests upon the party seeking to obtain the authorisation for the sterilisation. On this submission, useful references are: Briginshaw v. Briginshaw (1938) 60 C.L.R. 336, at p.372 per McTiernan J. and at pp.361-362 per Dixon J; Re Eve, at p.% Re Jane, at p. Re MM, at pp.80,680 - 80,681.

OUTLINE OF SUBMISSIONS IN RESPECT OF NECESSARY PROCEDURAL SAFEGUARDS

1. Submission

It is the Commission's submission that special attention should be given to the following two procedural safeguards in all applications to the Court for authorisation of a sterilisation procedure:

1.1 effective legal representation

1.2 the child's right to be heard

2. Effective legal representation of the child

2.1 Introduction

It is submitted that the High Court's central concern in Re Marion was that judicial authorisation was required for sterilisation as a procedural safeguard: see Re Marion, at p.249. It is submitted that for the Family Court to properly carry out this function of providing a procedural safeguard, it is essential that the child has robust and effective legal representation.

Terminology: in these submissions the term "legal representative" will be used to encapsulate simply, as shorthand, the various possible ways in which a child's interests may be protected and conveyed to the Court e.g. by a government authority, by a separate representative or by a next friend. In using this terminology as shorthand it is acknowledged that these alternatives are not the same legally nor do they constitute representation of the child in the sense of acting upon instructions.

2.2 Past practice of the Family Court

In the eight sterilisation cases to come before the Family Court there does not appear to have been a consistent approach to the issue of legal representation of the child, although in all (except, perhaps, one) of these cases there has been some degree of independent advocacy of the child's interests in some way. The various approaches applied in the Family Court can be identified as follows:

(a) No representation: there does not appear to have been any person specifically presenting an independent or different view in Re A (1993) 16 Fam.L.R. 715 (this was a case concerning gender reassignment surgery which included sterilisation; the Public Advocate appeared before the Court, but only to support the necessity of the procedure).

(b) Representation by a next friend (which may, in fact, be a government or other authority): this appears to have occurred in Re Elizabeth, Re a Teenager and Re Jane.

(c) Representation of the child's interests by a government or other authority only (and not specifically as the child's next friend or separate representative): this appears to have occurred only in Re Marion [No.2]. However, in Re MM, In Re S and Re M governments were also involved in some capacity even though there was also a separate representative for the child.

(d) Representation by a separate representative: this appears to have occurred in four cases - Re MM (even though the child herself was the respondent and should therefore, probably, have had a next friend appointed: see O.23 r.18 of the Family Law Rules), In re S and Re M, as well as the within matter.

2.3 Reasons for a special role for the child's legal representative in sterilisation cases

It is submitted that the role of the legal representative - in whatever form - needs further and stricter consideration for three reasons.

First, in sterilisation cases it will often be the case that there is no natural "contradictor" to the applicant's case, unless a government or other agency assumes that function: see Re K, at p.80,775 and In re Elizabeth. In the absence of a "contradictor" (or similar) the Court is placed in a much more difficult and even invidious position in assessing the weight to be given to the evidence adduced. Mushin J. adverted to this problem in Re A, at p.721, which was a case involving gender reassignment surgery and sterilisation:

"A difficulty which I have faced in this matter has been that I have not had the benefit of anybody to put the contrary view to the court. It is clear that A has very strong wishes in this regard and is supported by the public advocate. While it is reasonable to infer that the apparent non-existence of a person to argue against the granting of the relief sought by the mother leads to the conclusion that the case for the relief is strong, I must comment that it would have been most helpful to hear a contrary argument put."

Secondly, as the High Court stated in Re Marion, sterilisation is a special case with serious and (generally) irreversible consequences. In Re Eve, at p.33, La Forest J. - delivering the judgement of the Supreme Court of Canada - cited the following passage from Re Guardianship of Eberhardy, at p.894:

"... Importantly, however, most determinations made in the best interests of a child or of an incompetent person are not irreversible; and although a wrong decision may be damaging indeed, there is an opportunity for a certain amount of empiricism in the correction of errors of discretion. Errors of judgment or revisions of decisions by courts and social workers can, in part at least, be rectified when new facts or second thoughts prevail. And, of course, alleged errors of discretion in exercising the "best interest" standard are subject to appellate review. Sterilization as it is now understood by medical science is, however, substantially irreversible."

Thirdly, in the usual course it is difficult to see - at a practical level - how the child's appeal rights in a sterilisation case are going to be meaningful unless some special, additional onus is placed on the separate representative (as to the importance of the appeal rights in this area, see Article 7 of the Declaration on the Rights of Mentally Retarded Persons which is scheduled to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) - quoted earlier at p.2 of these submissions) . Of course, there is no doubt that the separate representative can appeal on behalf of the child: see In the matter of P. (1993) FLC 92-376, at p.79,895. However, in the within case, as in the case of Re M, the separate representative supported the application for sterilisation. Whilst this is permissible under the law as it presently stands, it does mean that if the separate representative does take this approach, and a trial judge makes a decision to authorise sterilisation, there will usually be no one who can or will bring an appeal on behalf of the child even if an appeal may be reasonably appropriate.

2.4 Recent developments by the Family Court in respect of separate representatives

In Re K this Court clearly developed and clarified the role and functions of separate representatives in proceedings before the Family Court, in part by the formulation of guidelines for their appointment.

With respect, this Commission clearly supports as extremely necessary this Court's guideline that (at least) a separate representative should normally be appointed in cases relating, inter alia, to the medical treatment of children where the child's interests are not adequately represented by one of the parties: see Re K, at pp.80,773 and 80,775.

In Re K this Court also adopted the position established in earlier authorities that the role and function of the separate representative "is broadly analogous to that of counsel assisting a Royal Commission in the sense that his or her duty is to act impartially but, if thought appropriate, to make submissions suggesting the adoption by the Court of a particular course of action": see Re K, at p.80,769, citing Bennett and Bennett (1991) FLC 92-191. It is submitted - as elaborated upon below - that this general principle should be varied in applications for authorisation of a sterilisation procedure.

Furthermore, advantageous as these recent developments are to the rights of children, it is the Commission's submission that in sterilisation cases it will usually be more appropriate to have the child's interests represented by a next friend rather than a separate representative.

2.5 The next friend

It is submitted that in the ordinary course the best way for the child to have effective, robust legal representation is for a next friend to be appointed (O.23 rr.3, 13 and 18 of the Family Law Rules) and, if the child is not already a party, the child should be joined as a party to the proceedings (s.63C of the Act) by the next friend.

There are significant, although subtle, differences between the role played by a next friend and the role played by a separate representative: see Australian Family Law and Practice Reporter, at pp.40,251 - 40,252 (par.[52,440]), 40,273 - 40,274 (pars [52,460], [52,465]); De Groot and De Groot (1989) 13 Fam L.R. 292, at p.ĩ Read v. Read [1944] S.A.S.R. 26, at p.29. It is submitted that, due to the nature of the duties placed by law upon a next friend, representation by a next friend will generally lead to representation of a child that is more akin to that of a contradictor.

The general significance of this issue was succinctly described as follows in the Australian Family Law and Practice Reporter, at p.40,251 (par.52-440):

"Where the infant is a necessary party to the proceedings then it is not a matter of appointing a separate representative for that party but for the court to make a decision under O.23 r.3 or O.23 r.18 as to whether the infant party understands the nature and possible consequences of the proceedings or is not capable of conducting the proceedings on his or her own behalf. A next friend stands in the position of the infant party and is obliged to act in the interests of that infant party and does not have anything of the character of a counsel appearing amicus curiae."

Sterilisation cases are inextricably about the child and therefore the child should be considered a necessary party to any proceedings seeking authorisation of sterilisation. Thus, in cases concerning medical treatment of children with a disability (especially sterilisation), it should generally be considered necessary and appropriate:

(a) to have the child as a party to the proceedings

(b) to have the child represented by a next friend - rather than a separate representative or an amicus curiae - in order to ensure that the child has the most robust and appropriate legal representation.

2.6 Submissions as to the special role of the legal representative in sterilisation cases

For the above reasons, it is submitted that the onus and responsibilities upon a child's legal representative need to be expanded when they are called upon to represent the interests of the child in a sterilisation case and there is not a natural "contradictor" to the applicant's case.

The Commission submits that the following additional responsibilities are appropriate in these circumstances:

2.6.1 The legal representative should ensure that:

- sufficient evidence is led in relation to (a) the child's capacity, and (b) all of the matters covered by the guidelines issued by this Court in respect of the discretion to authorise sterilisation ("the guidelines") to the extent that the guidelines are relevant to the particular case

- there is sufficient and thorough testing of the evidence led in relation to (a) the child's capacity, and (b) all of the matters covered by the guidelines to the extent that the guidelines are relevant to the particular case

- the child's views are presented to the Court in some direct way

2.6.2 The legal representative should address the Court in respect of all matters covered by the guidelines (to the extent that the guidelines are relevant to the particular case).

2.6.3 The legal representative should put any legitimate and not plainly unreasonable alternative view to the Court: cf. the comments of Mushin J. in Re A, at p.721.

2.6.4 The legal representative should not, except in exceptional circumstances, make a submission to the Court suggesting that the Court should authorise the sterilisation procedure sought.

2.6.5 The legal representative should, upon receiving the Court's decision, specifically consider whether there is any reasonable need or basis for an appeal in respect of the Court's decision. If yes, the legal representative should forthwith commence and assume responsibility for that appeal.

3. The child's right to be heard

3.1 Introduction

It is clear that the Family Court has the power to take into account the child's views in relation to proposed medical treatment. It also appears clear that there is no absolute obligation on the Court to get these views: see s.64(1)(b) of the Act and Order 23 r.5(4) of the Family Law Rules. The provisions of the proposed new Division 10 of the Act, as contained the Family Law Reform Bill 1994 (Cth), sustain and clarify this position.

It is submitted that whilst the above position may not only be appropriate but also necessary for many applications to the Family Court, the serious and (generally) irreversible nature of sterilisation operations require a different and stricter approach in this area so as to constitute an additional procedural safeguard. A useful comparison is s.4(d) of the Guardianship Act 1987 (NSW) which clearly directs decision-makers under that Act to take into account the views of persons who have disabilities.

3.2 Past practice in the Family Court and comparative law

Past practice

The issue of the child's right to be heard has been relevant to only a limited degree in the sterilisation cases heard by the Family Court. There appears to have been eight sterilisation cases in the Family Court: Re Jane, Re a Teenager, In re Elizabeth, Re MM, Re Marion [No. 2], Re M, In re S and the within case. However, it appears that it was only in Re Marion [No.2] (and the within case) that the child's views were sought out and taken into account in some direct way by the Court.

The issue of considering the views of a child in respect of sterilisation was discussed in Marion's Case, at p.ú Gamble, op. cit., at p.Æ Bright Committee Report, as cited in Goldhar, op. cit., at p.181. See also Re Eve, as cited in Goldhar, op.cit., at p.184.

Comparative international law

Furthermore, it is submitted that comparative international law strongly suggests that a child's views as to whether he or she should have any medical treatment are essential, useful and important. Article 12 of the Convention on the Rights of the Child provides:

"1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."

Further international support for this position in matters involving medical treatment for children can be found in In the Matter of P.Y and J.Y, at p.Ě Re Grady, at p.482 and the Matter of Terwilliger, at p.1383. Generally as to the importance of direct evidence in regard to capacity see Toohey v Metropolitan Police Commissioner [1965] A.C. 595, at p.607.

3.3 Submission

It is therefore submitted that a child's views as to whether he or she should be sterilised should always be directly taken by the Court unless there are particularly strong and cogent reasons why this should not occur (see paragraph 3.4 below).

The directly expressed views of the child can have a twofold relevance:

3.3.1 they can assist the Court in deciding the issue of the child's capacity to give informed consent (see separate submissions);

3.3.2 they enable the Court to hear the child's wishes for itself: In the Matter of P.Y and J.Y, at p.Ě Re Grady, at p.Ǣ Matter of Terwilliger, at p.1383.

In both of these senses, the direct hearing of the child's views constitutes an important procedural safeguard, especially in relation to the threshold issue of capacity to consent: see Re Marion, at p.239 and Re Marion [No.2], at pp.80,656 and 80,663.

Further, and if at all possible, those views should be obtained directly from the child as it is a significant procedural safeguard not to allow - generally - an order authorising the sterilisation of a child when there is only hearsay evidence of the child's capacity and views (however ostensibly reliable that hearsay evidence may be).

Thus, the separate representative should not - ordinarily - be able to preclude the child's appropriate but direct involvement in the proceedings: note O.23 r.5(4) of the Family Law Rules.

3.4 Receiving the child's views

In the ordinary course the appropriate way for the child to express his or her views to the Court is through the assistance and involvement of the child's parents and separate representative in order that the child can understand to the fullest extent the issues involved in the decision and participate in the least traumatic way: see Gillick's Case, especially at pp.174 and ½ Austin, op. cit., at pp.593-594. Note also the procedure adopted in Re Marion [No.2], at p.80,656.

Of course, in some cases it may be inappropriate to seek to directly obtain the child's views although - presumably - these would be exceptional cases. Furthermore, in some cases the involvement of a child in the making of such a major medical decision could be a distressing, intense and damaging experience for the child: see Minow, "The Role of Families in Medical Decisions" [1991] Utah Law Review 1 at p. Austin, op.cit., at p.594. However, even in these special circumstances, it may still be possible to obtain the child's views in a way that is still substantially direct, yet appropriate and not traumatic; for example, through the use - as in the within case - of video evidence of the child being asked questions by a psychiatrist that may indicate the child's views in respect of the sterilisation.

In a sensible way, a child should be kept as fully informed as possible about all matters relevant to his or her life lest the quality of that life - contrary to his or her best interests - be needlessly impaired: see Re Michael [No.2] (1994) FLC 92-486

Last updated 19 May 2003.