Commission submissions: P v P

IN THE FAMILY COURT OF AUSTRALIA AT SYDNEY

No. SY 4034 of 1989

BETWEEN:

surname [ P. ] given names [ G.O. ] husband

AND:

surname [ P. given names [ J.D. ] wife

OUTLINE OF SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

1. Question of competency to consent must be decided as the first issue:

- see written submissions (attached herewith).

2. There is a need for judicial guidelines in this area:

- see written submissions (attached herewith).

3. Submissions as to what are appropriate guidelines and procedural safeguards:

- see written submissions (draft handed up earlier; updated correct version attached herewith).

4. Child's right to be heard:

- see written submissions (handed up earlier).

OUTLINE OF SUBMISSIONS BY THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN RESPECT OF THE CHILD'S RIGHT TO BE HEARD

1. Submissions as to Law

1.1 It is submitted that the law in Australia is both uncertain and unsatisfactory as to the issue of whether a child's view should ordinarily be taken into account by a court when that court is considering whether to authorise medical treatment on the child.

It is clear that the Family Court has the power to take into account the child's views in relation to proposed medical treatment but it also appears clear that there is no absolute obligation on the court to get these views: see s.64(1)(b) of the Family Law Act 1975 (Cth). Also Order 23 r.5 of the Family Law Rules may work against the child's right to be heard. In contrast s.4(d) of the Guardianship Act 1987 (NSW), for example, clearly directs decision makers under that Act to take into account the views of persons who have disabilities.

The issue of the child's right to be heard has been relevant in the sterilisation cases heard by the Family Court. There appears to have been seven sterilisation cases in the Family Court: Re Jane (1988) 94 FLR 1, Re a Teenager (1988) 94 FLR 181, In re Elizabeth (1989) 13 Fam. LR 47, Re MM (Unreported, Family Court of Australia, Warnick J, 26 November 1993),Re Marion No. 2 (Unreported, Nicholson C.J., Family Court of Australia, Date of Judgment, 1 May 1992, Date of publishing of Judgment, 21 January 1994), Re M (1992) FLC 92-318, In re S (1989) Fam. LR 660. However it appears that it was only in Re Marion (No.2) that the child's views were sought out and taken into account by the Court.

The issue of considering the views of a child in respect of sterilisation was discussed in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at p.250 ("Marion's Case"); Gamble, "Re-examining Children's Consent to Medical Treatment" (1992) 27 Australian Law Journal of Social Issues 194 at p.Æ The Australian Law Reform Commission Report No. 52, Guardianship and Management of Property at p. Bright Committee, The Law and Persons with Handicaps, Vol.2, Intellectual Handicap, Government Printer, South Australia, 1981, as cited in Goldhar, "The Sterilization of Women with an Intellectual Disability" (1991) 10 University of Tasmania Law Review 157, at p.181. The issue does not appear to have been directly considered in Re Jane or in Re a Teenager. See also Re Eve, as cited in Goldhar, op.cit., at p.184.

1.2 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: see Article 12 of the Convention on the Rights of the Child; In the Matter of P.Y and J.Y (1993) 14 Human Rights Law Journal 280, at p.Ě Re Grady (1981) NJ 426 A.2d 467 at p.Ǣ Matter of Terwilliger (1982) Pa.Super.,450 A. 2d 1376 at p.է Cf. Toohey v Metropolitan Police Commissioner [1965] AC 595 at p.607.

1.3 It is therefore submitted that a child's views as to whether he or she should be sterilised should always be taken into account by a court unless there are particularly strong and cogent reasons why this should not occur (see paragraph 1.5 below).

The calling of the child to give his or her views and, if considered appropriate, examination of the child by the judge (to occur preferably in an appropriate way, e.g informally in chambers in the presence of both counsel and the child's parent/s as occurred in Re Marion (No. 2) at p.7) can have a twofold relevance:

1.3.1 it can assist the Court in deciding the issue of the child's capacity to have informed consent (see separate submissions);

1.3.2 it enables the Court to hear the child's wishes for itself: Supreme Court of Newfoundland, St. John's, (1993) 93/0311, Human Rights Law Journal, Vol. 14 No. 7-8, 280, at p.Ě Re Grady, at p.Ǣ Matter of Terwilliger at p.1383.

In both of these senses, the hearing of the child's views will be an important procedural safeguard.

1.4 In the ordinary course the appropriate way for the child to express his or her views to the court is through the child's separate representative. Those views may need to be obtained with or through the assistance and involvement of persons other than the separate representative - most notably the child's parents - in order for the child to understand the issues involved in the decision: see Gillick v West Norfolk AHA [1986] AC 112 ("Gillick's Case"), especially at pp.174 and ½ Austin, "Righting a child's right to refuse medical treatment" (1992) 7 Otago Law Review 578, at pp.593-594.

1.5 Furthermore, as stated above, it may be appropriate for the hearing of the child's views to occur in an informal setting and in the least traumatic way for the child with a disability.

The involvement of a child in the making of such a major medical decision may 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.

Accordingly, in special circumstances it may not be necessary to obtain a child's views about the proposed sterilisation. However, it is submitted that before this course is adopted the Court should be clearly satisfied (see Briginshaw v Briginshaw (1983) 60 CLR 336) as to both the following matters:

1.5.1 that the child is clearly not "Gillick competent" (and will never be so) in the sense of being able to consent to the sterilisation by himself/herself without parental or court sanction (see separate submissions); and

1.5.2 that the proposed sterilisation was not a course of treatment that reasonable and prudent parents could - in the opinion of the court - authorise for their child irrespective of the wishes of the child.

The special circumstances where it is not necessary to obtain the child's views may include the use of video evidence of the child being asked questions that may indicate the child's views in respect of the sterilisation. The value of such evidence may depend upon the questions being asked of the child being the same or similar to those the Court would have asked the child.

2. Other Submissions

2.1 Children's views about their health and what is in their best interests cannot only be perceptive, but also can be quite accurate and reliable from a relatively early age: see generally Gamble, op. cit., at pp.198-199, where the author refers to extensive research which indicates that children as young as five years of age can make reasonable decisions about their health needs although using less sophisticated reasoning processes than mature children or adults. Of course, it is not submitted that such young children should have a conclusive say on the issue. Nevertheless, it is submitted that if such a young child can make such reasonable decisions, it is possible that an older child with an intellectual disability may also be able to do so, or at least provide a constructive useful input to the decision.

2.2 The views of the child who is not "Gillick competent" may be of considerable solace and assistance in difficult cases to both parents and decision makers: these factors themselves could be of considerable comfort and benefit to the child, parent and decision makers.

2.3 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 his or her life - contrary to his or her best interests - be needlessly impaired: see John Briton, Acting Public Advocate for the State of Victoria v. G.P and K.P and Human Rights and Equal Opportunity Commission (Unreported, 17 May 1994, File No. ML 8841/93), at p.7.

OUTLINE OF SUBMISSIONS BY THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN RESPECT OF THE ISSUE OF WHETHER THE CHILD CAN HERSELF CONSENT TO THE STERILISATION

1. Submissions as to Law

1.1 The law is clear that a child can give legally informed and effective consent to medical treatment in particular circumstances: Secretary, Department of Health and Community Services v JWB and SMB ("Marion's Case") (1992) 175 CLR 218 especially at pp.237-238, 315-Ľ Gillick v West Norfolk AHA [1986] AC 112 ("Gillick's Case"), especially at pp.169,186.

1.2 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.

1.3 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, 589-591, Re R, at p.28, Marion's Case, at pp.237-238).

1.4 Accordingly, the first decision that must be made by the Court in this matter is whether the child, Lessli, has achieved "a sufficient understanding and intelligence to enable him or her to understand fully what is proposed": Gillick's Case, at pp.183-184, as followed in Marion's Case at p.237. It is submitted that if this question is answered affirmatively then this Court has no further role in this matter.

2. Other Submissions

2.1 As a matter of law (as well as a matter of fact) there is no fixed age at which a child can be said to be able to give legally effective consent to medical treatment and it will need to be determined on the facts of each case: Marion's Case at pp.237-238. The age at which a child will be able to give effective consent will be influenced, inter alia, by the individual attributes of the child as well as the complexity of the treatment issues involved: see Marion's Case at pp.237-238 (see especially footnote 74 therein) and at pp.295-Ĩ Austin, op. cit., at pp.592-593 and the authorities and references cited therein.

2.2 The child, Lessli, is 17 years old. It is submitted that in terms of age alone, it is possible that she is old enough to give effective consent to such surgery. It is perhaps significant to note that s.6 of the Consent to Medical and Dental Procedures Act 1985 (SA) provides that under certain circumstances a child under 16 years can give legally effective consent.

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 Bright Committee, The Law and Persons with Handicaps, Vol.2, Intellectual Handicap, Government Printer, South Australia, 1981 ("Bright Committee Report") at p.125.

It is submitted that as stated in Marion's Case at p.239, "it is important to stress that it cannot be presumed that an intellectually disabled child, is by virtue of his or her disability, incapable of giving consent to treatment. The capacity of a child to give informed consent to medical treatment depends on the rate of development of each individual".

2.4 It is also necessary to consider the child's capacity to give future consent given the child's age or intellectual development: see Marion's Case at pp.238-239, 250, 306 and ŀ 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 (1987) 31 DLR (3d) ě Family Law Council Discussion Paper, "Sterilisation and Other Medical Procedures on Children," October 1993, at p. 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.

It is submitted, therefore, that it should also be considered whether Lessli will be able to give informed consent in the future to a sterilisation even if it is found she is not able to do so at the present time.

OUTLINE OF SUBMISSIONS BY THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AS TO WHY THE FAMILY COURT SHOULD PROVIDE DETAILED REASONS AND GUIDELINES FOR THE MAKING OF AN ORDER TO STERILISE OR NOT TO STERILISE A CHILD

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. Basis for the Need for Detailed Reasons and Guidelines in respect of Sterilisation

The Commission refers the court to paragraph 7 of the Declaration on the Rights of Mentally Retarded Persons which is scheduled to the Human Rights and Equal Opportunity Commission Act 1986 and 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."

It is the Commission's view that the clearest principles and guidelines should be enunciated by the court in relation to the sterilisation of children for the following reasons:

2.1 Need for Consistent Criteria and Guidelines

2.1.1 Over two years has passed since Marion's Case and there have to date been no conclusive or uniform guidelines as to the discretion under the Family Law Act 1975 (Cth) to order a sterilisation. The criteria established by single judges of the Family Court in the three cases since Marion's Case was decided in the Full Court of the Family Court (Re M (1992) FLC 92-318, Re MM (Unreported, Warnick J, Family Court of Australia) and Re Marion (No. 2) (Unreported, Nicholson C.J., Family Court of Australia, Date of Judgment, 1 May 1992, Date of publishing of Judgment, 21 January 1994)) have not, it is respectfully submitted, been completely consistent and have not provided any proscriptive criteria or procedural safeguards.

2.1.2 In addition, in at least one case since Marion's Case,there has been quite some uncertainty as to the effect of an important principle laid down by the majority in Marion's Case: see Re MM op.cit. at 23-27.

2.1.3 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, "Sterilisation of the Intellectually Disabled : The Need for Legislative Reform", (1991) 5 Australian Journal of Family Law (No. 2) 138 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.

2.1.4 The existence of guidelines would better enable parents, guardians and 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 for parents and guardians.

2.2 To Avoid a Divergence of Views

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") and the Family Court following Marion's Case. The extent to which the judiciary has differed in its approach to and decision-making in respect of this matter of sterilisation is borne out by comparing two of the decisions of the Family Court since Marion's Case which were on similar facts (Re Marion (No.2) and Re M). See also the differing approaches in Re a Teenager (1988) 94 FLR 181 and Re Jane (1988) 94 FLR 1 and the discussion of those two cases in Blackwood, op.cit., pp.152-153.

2.3 Enable Effective Review

Establishing guidelines and procedural safeguards would ensure that the decision to sterilise is principled and therefore effectively reviewable: see Marion's Case per Brennan J., at pp.270-Ē per McHugh J.,at pp.320-321. 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. It is of some note that in the decision of Re Marion (No.2) there was a finding by the Court that the sterilisation was medically necessary to prevent serious harm. However the crucial issue of whether the same treatment would have been recommended for solving the same problems for a person of the same age and gender without an intellectual disability (which would be a relevant issue under the Victorian Guardianship Board criteria) was not raised. The failure to raise this issue would have made the case much more difficult to review by an appeal court.

2.4 Role of Separate Representative

2.4.1 Guidelines and safeguards may crystallise the role of the separate representative in sterilisation cases. Pursuant to s.65 of the Family Law Act separate representation for the child is only discretionary. The Commission respectfully submits that in the special case of sterilisation it should be mandatory (see Petersen, "The Family v. The Family Court" 16 Australian Journal of Public Health (No.2) 196, at p.È Bright Committee, The Law and Persons with Handicaps, Vol.2, Intellectual Handicap, Government Printer, South Australia, 1981, as cited in Goldhar, "The Sterilization of Women with an Intellectual Disability" (1991) 10 University of Tasmania Law Review 157, at p.µ Re Eve (1987) 31 DLR (3d) 283 as cited in Goldhar op. cit., at p. Re Jane at pp.19-20 (following Re Grady N.J. 426 A. 2d 467) and at p. Scott, "Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy" [1986] Duke Law Journal 806 at p.̳ Matter of Terwilliger (1982) Pa. Super., 450 A. 2d 1376 at p.է cf. Re M at p.79,405 where the separate representative supported the sterilisation; cf. In re S (1989) 13 Fam. LR 660 at pp.668-669).

2.4.2 Additionally, it is significant that in Re Marion (No. 2) the child did not have the protection of a separate representative (although the Department to an extent represented her interests and this Commission made written submissions but was not involved in the evidence at all). By contrast, in the case of Re MM which involved a child with a similar intellectual disability to the child in Re Marion (No.2), and also suffering epilepsy, the Court did not authorise sterilisation. Although there were differences in the facts between the two cases, it is submitted that it may have been significant that the child in Re MM was separately represented.

2.5 Gravity of Decision

Guidelines and procedural safeguards are necessary given that the consequences of an incorrect decision are extremely serious. 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 the usual discretions under the Family Law Act 1975 (Cth) (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 supra at p.33).

2.6 Nature of Court's Discretion

2.6.1 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 very general standard. Given the nature of the discretion here, it should more closely resemble a principled decision rather than a discretionary one: see Norbis -v- Norbis op.cit., at p.Ȇ Marion's Case at p.259.

2.6.2 As the discretion described by Marion's Case was as a development of the common law (rather than by statute), and because it has been held by the High Court to be a special case, the empirical case-by-case development of guidelines or safeguards is not appropriate with this discretion: cf. Norbis -v- Norbis, op.cit., at pp.533-534 per Wilson and Dawson JJ. It is submitted, therefore, that it is necessary to formulate guidelines and procedural safeguards that indicate the nature of and utilisation of this discretion.

OUTLINE OF SUBMISSIONS BY THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AS TO CRITERIA RELEVANT TO THE DISCRETION AS TO AUTHORISATION OF STERILISATION

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) 172 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. Criteria to be considered by the court

The criteria to be applied by a court can be seen to fall into three general categories: binding "authorising" criteria, binding proscriptive criteria, and non-binding guidelines as to the exercise of the discretion to authorise sterilisation.

2.1 Binding authorising criteria

Sterilisation will 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 is noted that in these circumstances the surgery is within the powers, rights and duties of a guardian under s.63E(1) of the Family Law Act 1975 (Cth) 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, "Children's Rights and Doctors' Immunities: The Implications of the High Court's Decision in Re Marion," (1992) 6 Australian Journal of Family Law (No.2) 101, at pp.107-108.

2.2 Binding proscriptive criteria

Sterilisation will never be in the best interests of the 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 the 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 (1988) 94 F.L.R. 181, at p.¸ Family Law Council Discussion Paper, "Sterilisation and Other Medical Procedures on Children," October 1993 ("the Family Law Council Paper") at p. Blackwood, "Sterilisation of the Intellectually Disabled: The Need for Legislative Reform" (1991) 5 Australian Journal of Family Law (No.2) 138, at p.™ Re MM (Unreported, Warnick, J, Family Court of Australia) at p.14, 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, Ł the Family Law Council Paper, at p.32 (on the basis that it is too radical a form of contraception for children). Cf. Marion's case at pp.323-324 per McHugh J.

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 (1986) 31 D.L.R. (4th) 1 at p.32. But cf. Re Jane (1988) 94 F.L.R. 1, 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: Law Reform Commission of Canada, Working Paper 24, "Sterilisation: Implications for Mentally Retarded and Mentally Ill Persons", 1979, at p." Marion's case, at pp.276, 295, 300, ł note Re Jane at pp.20, In re Elizabeth, at p.60. This is a particularly important proscription, bearing in mind that s.64(1)(bb)(v) of the Family Law Act makes it mandatory for the Family Court to take this matter into consideration.

2.2.6 if the operation is not the last resort: Marion's case, at p.259.

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 interest of the child, the discretion is not at large and 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 The Australian Law Reform Commission, Report No 52, Guardianship and Management of Property, at p. Re Marion (No.2) (Unreported, Nicholson C.J., Family Law Court of Australia, Date of Judgement, 1 May 1992, Date of Publishing of Judgement, 21 January 1994) at p. 27.

2.3.2 the capacity of the child to give present consent given the child's age. On this submission, useful references are: Marion's case, at pp.232, 237-238, 250 and IJ Supreme Court of Newfoundland, St. John's, (1993) 93/0311, Human Rights Law Journal, Vol. 14 No. 7-8, at p.Ę 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. 376-378.

2.3.3 the capacity of the child to give future consent given the child's age. On this submission, useful references are: Marion's case, at pp.238-239, 250, 306 and ŀ Re D (a minor) (wardship:sterilisation) [1976] 1 All ER 326, at p.ŏ See Stump v. Sparkman (1978) 435 US 349, cited by La Forest J. in Re Eve, at p. the Family Law Council Paper, at p. Bright Committee, "The Law and Persons with Handicaps," Vol.2, Intellectual Handicap, Government Printer, South Australia, 1981, as cited in Goldhar "The Sterilisation of Women with an Intellectual Disability" (1991) 10 University of Tasmania Law Review 157, at p.181.

2.3.4 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 ordinarily should not be 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 Tribunal Guidelines. But cf. Re Jane, at pp.20, 21.

Note: of the seven main cases to come before the Family Court since 1988 in relation to sterilisation (Re Jane, Re a Teenager, Re Elizabeth, Re MM, Re Marion [No.2], Re M (1992) F.L.C. 92-318, Re S (1989) 13 Fam. L.R. 660), only in two had the child commenced to menstruate (Re MM and Re Marion [No.2]).

2.3.5 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. Australian Law Reform Commission, Report No 52, "Guardianship and Management of Property", 1989, at p. Bright Committee, op. cit. at p.~ Goldhar, at p.185.

2.3.6 the views of the child. On this submission, useful references are: Marion's case, at p.ú Family Law Act, s.64(1)(b); the Family Law Council Paper, at p. Gamble, "Re-examining Children's Consent to Medical Treatment", Australian Journal of Social Issues, Vol.27, No. 3, August 1992, at p. Æ Australian Law Reform Commission, at p. Bright Committee, as cited in Goldhar, at p.181. The issue does not appear to have been directly considered in Re Jane or in Re a Teenager. See also Re Eve, as cited in Goldhar, at p.184.

2.3.7 the extent of intellectual impairment of the child. On this submission, a useful reference is Marion's case, at p. 306.

2.3.8 potential capacity of the child to care for an infant and to understand the parent-child relationship. On this submission, useful references are: Marion's case, at pp.305-307, 321 and Ń Re Jane, at p.ʨ note generally the views of Scott, "Sterilisation of Mentally Retarded Persons: Reproductive Rights and Family Privacy" [1986] Duke Law Journal 806.

2.3.9 detrimental consequences of the child having to continue to menstruate. On this submission, useful references are: Marion's Case, at p.244, 305, Ł Re X, at p.Ű Re Jane, at p. Re Eve, at p. See 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.

2.3.10 the child's prognosis as regards intellectual capacity and 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.

2.3.11 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, as cited in Goldhar, at p.µ Re a Teenager, at pp.212-219.

2.3.12 the child's present and future capacity to be involved in a human relationship or be a parent and the degree of comprehension of sexual relationships, procreation and parenting. On this submission, useful references are: Marion's case, at pp.305-IJ Re Jane, at p. Re X, at p.376. Note also Re Eve, at p.31.

2.3.13 the effect of sterilisation on the long term physical health of the child. On this submission, useful references are: Marion's case, at pp.251, 252 and į the Family Law Council Paper, at p.27.

2.3.14 the effect of sterilisation on the long term mental health and emotional well-being of the child and upon the child's important relationships. On this submission, useful references are: Marion's case, at pp.252, 267, 296, 303, Ł Re Eve, at p. Goldhar, at p.² Re X, at p.377.

2.3.15 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, İ 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 Family Law Act which seemingly makes it mandatory for the Family Court to consider this.

2.3.16 whether the operation is substantially therapeutic or non-therapeutic (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.

2.3.17 is the least invasive surgical procedure necessary for the child's welfare being undertaken. For example, will 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.

2.3.18 would the same procedure be recommended for solving the same problem for an intellectually competent child: Victorian Guardianship Board Guidelines, at p.88. Note this issue was not raised in the matter of Re Marion [No.2] where it may have been a crucial aspect of the matter (especially bearing in mind the seemingly contrary medical evidence adduced in Re MM, at p.16 and In re Elizabeth, at p.60)

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 p.29.

Last updated 19 May 2003.