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

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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.

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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 161-165; 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.108; 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.

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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 320; Re Marion [No. 2], at pp.80,663,
80,667; Re D (a minor) (wardship: sterilisation) [1976] 1 All ER 326, at
p.335; Stump v Sparkman (1978) 435 US 349, cited by La Forest J in Re
Eve, at p.24; Family Law Council Discussion Paper, "Sterilisation and
Other Medical Procedures on Children," October 1993 ("the Family Law
Council Paper") at p.21; 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 306; 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.198-199; Re X, at pp.376-378; Re D (a minor),
at p.335; Stump v. Sparkman, cited by La Forest J. in Re Eve, at
p.24; the Family Law Council Paper, at p.21; 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, 315-317; 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.11; Austin "Righting a child's right
to refuse medical treatment" (1992) 7 Otago Law Review 578, especially
at pp.578, 583-591; 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.

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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.518; 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 321; Family
Law Council Paper, at p.32; 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.184; the Family Law Council Paper, at p.32; Blackwood, op. cit., at
p.153; 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.80,665-80,666; 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.321; 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, 322; Re Marion [No.2], at pp.80,665-80,666; note Re
Jane at pp.20, 21; In re Elizabeth, at p.60; Law Reform Commission
of Canada, Working Paper 24, "Sterilisation: Implications for Mentally Retarded
and Mentally Ill Persons", 1979, at p.34. This is a particularly important
proscription, bearing in mind that s.64(1)(bb)(v) of the Act makes it mandatory
for the Family Court to take this matter into consideration: of course, it is
still a relevant consideration and is included in later guidelines.

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, 321; Re Jane, at p.20; Re X [1991]
2 N.Z.L.R. 365; 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, 378; 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.104; Matter of Terwilliger,
(1982) Pa. Super., 450 A.2d 1376, at p.1383; Re Grady (1981) N.J. 426 A.2d
467, especially at p.488; 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.259; Re Jane, at p.20; Bright Committee Report, op.cit.,
at p.126; 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.250; s.64(1)(b)
of the Act; the Family Law Council Paper, at p.21; Gamble, op. cit., at
p. 198; 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 323; Re Jane, at p.20; 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, 321;
Re X, at p.368; Re Jane, at p.21; Re Eve, at p.32; 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, 305-306; Re Jane, at p.27; Bright Committee
Report, as cited in Goldhar, op.cit., at p.181; 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 321; Re MM, at p.80,674; the Family
Law Council Paper, at p.27; Re Eve, at p.30; 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, 304; Re Marion [No.2],
at pp.80,665-80,666; Re Jane, at p.21; Re X, at p.377; Re a Teenager,
at p.231; 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, 296; 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 305-306; 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.37;
Re Jane, at p.27; Re MM, at pp.80,680 - 80,681.

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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.297; 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.250; Gamble, op. cit., at p.198; 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.282; 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.282; Re Grady, at p.482; 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 189; 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.2; 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.