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What's new in family law?
The case of In re Marion (1991) FLC 92-193 considered the rights and responsibilities of the parents of an intellectually disabled teenage girl. This article examines the content and implications of the decision.
Family law disputes are rarely determined by the most senior court in the country, and if they reach that level of judicial consideration they usually involve complex constitutional issues. This was not a characteristic of Marion's case, yet all seven High Court judges commented on the difficulties it raised and its significence for both parents and children in the confusing area of parental and children's rights.
The case of In re Marion (1991) FLC 92-193 originally came before the Full Court of the Family Court of Australia in June 1990. It involved the difficult issue of who may lawfully authorise the sterilisation of an intellectually disabled teenage girl, and therefore brought into sharp relief the debate concerning family autonomy versus state intervention sparked off in previous instances where decision-making over children's welfare has been contested.
Two other notable disputes that raise many of the same complex issues have been the recent involvement of welfare departments in New South Wales and Victoria with the Children of God families, and the much publicised English House of Lords decision in the Gillick case  AC 112 regarding the circumstances in which contraceptive advice and treatment could be provided to girls under the age of 16 without parental consent. And in another twist to the abortion debate in the United States, the Supreme Court has ruled that parental consent is required before the pregnancy of a minor may be terminated.
Marion (not her real name) is now 14 years old. As well as being intellectually disabled, Marion is also severely deaf, has epilepsy and what were described as an ataxic gait and behavioural problems. Her parents, residents of the Northern Territory, had applied to the Family Court of Australia for an order authorising the removal of her uterus (a hysterectomy) and ovaries (an ovariectomy). Both these operations involve major surgery, and either would result in Marion becoming permanently infertile.
THE FAMILY COURT DECISION
The Full Court of the Family Court delivered its judgement in December 1990. At that time Marion was 13 years old and had reached puberty. She was considered to be incapable of caring for herself physically and did not understand the nature or implications of sexuality, pregnancy or motherhood. Her parents claimed that Marion was experiencing psychological and behavioural problems caused by hormonal changes and that it would be in the girl's best interests for her to undergo the operations they sought. A hysterectomy would prevent menstruation and pregnancy, and the removal of her ovaries would, they argued, eliminate her hormonal instability and associated stress and behavioural problems.
Marion's disabilities were so severe that she was unable to understand the nature or implications of the operation her parents were seeking on her behalf, and presumably would never reach that level of comprehension.
By a 2/1 majority (Nicholson CJ dissenting) the Full Court of the Family Court decided that the parents, as joint guardians of Marion, were able to authorise her sterilisation without a court order, although Strauss J considered that Family Court approval should still be obtained as a matter of prudence. McCall J found that the relevant provisions of the Family Law Act gave the parents responsibility for the long-term welfare of their child, and also independently granted them all the common law powers, rights and duties associated with guardianship. He concluded that these were sufficiently wide to enable parents to authorise sterilisation.
In dissenting, Chief Justice Nicholson CJ agreed with judicial comments made in previous English decisions that sterilisation, involving as it does an interference with the right to bodily inviolability and the right to decide whether or not to reproduce, was in a different category from other procedures consented to by parents on a child's behalf. In his view these features, combined with the irreversibility of the operation and the emotion generated by such an issue, led to the Court's authority being required. At the same time the Chief Justice thought it desirable that a case involving what he described (at page 78,304) as 'a difficult and complex area of the law on which opinions of judges may differ' should be considered by the High Court, which in due course it was.
The law had not been clarified by four previous Family Court decisions of single judges involving similar fact situations, although different in the sense that all were initiated by parties other than the parents. The earlier cases on two occasions held that a Court's authorisation to sterilise an intellectually disabled child was considered necessary, and on two occasions the decision was considered to be within parental power. (The cases involved were Re a Teenager (1988) 94 FLR 181, Re Jane and Re Elizabeth (1989) FLC 92-023, and In re S (1988) 98 FLR 41.)
THE HIGH COURT OF AUSTRALIA'S DECISION
In Marion's case, an appeal to the High Court of Australia was initiated by the Secretary of the Northern Territory Department of Health and Community Services. (The complete citation of the case is Secretary, Department of Health and Community Services (NT) v JWB and SMB (1992) ALJR 300.) Because of the ramifications of the case, the Commonwealth, New South Wales, South Australian and Queensland Attorneys General and the Human Rights Commission intervened.
A major argument advanced for Marion's parents before both courts was that the decision to sterilise her was not significantly different from other major decisions parents are called upon to make from time to time, and that any involvement of the Family Court would be at the option of the parents and of a supervisory nature only.
The joint majority judgement (Mason CJ, and Dawson, Gaudron and Toohey JJ) considered a number of aspects of assault, consent to medical treatment, parental responsibilities and duties and the particular nature of sterilisation. They held that the parents could not lawfully authorise a sterilisation procedure to be carried out on their daughter without a court order.
The legal position of all parents of dependent children is set out in Part VII of the Family Law Act. Sections 63E and F of the Act define 'custody' and 'guardianship' and stipulate that unless there is an order to the contrary, each parent is custodian and has joint guardianship of their children. With custodial authority being restricted to the right and responsibility to have and make decisions concerning daily care and control, it is the concept of guardianship, with its attendant long-term and common law rights, responsibilities and duties, that is of relevance to the issue of consent to medical procedures (including sterilisation).
PARENTS AND CHILDREN: THE LEGAL BALANCE
The legal relationship between parents and children has altered as social norms, developmental psychology and the exigencies of the twentieth century have evolved. Childhood itself is based on paradox, with young people in Western industrialised societies having more autonomy at earlier ages and yet being financially dependent on their parents for longer and longer periods (Edgar 1988).
The reduction in the age of majority from 21 to 18 years, which occurred in most jurisdictions two decades ago, involved an acceptance that the capacity to exercise full legal rights could be exercised by a group formerly considered to be too immature. At the same time the vulnerability of children and the responsibilities of the state to the exploited and abused were being recognised in the evolution of increasingly comprehensive child protection statutes and programs. Wade (1988) has attributed recent interest in who has power over children to their potential financial independence, a cultural emphasis on individualism, the steady rate of marriage breakdown and its associated increase in 'blended' families, the increase in the ex nuptial birthrate, and a growing understanding of the lasting importance of childhood experiences to adult personality.
Traditionally fathers were considered to have nearly total control over children born within marriage. More recent acceptance of the role of mothers, plus the elimination of the status of illegitimacy, have seen the introduction of joint custody and guardianship of both nuptial and ex nuptial children, once any doubts about paternity of ex nuptial children have been assuaged.
CONSENT TO MEDICAL PROCEDURES
In the absence of valid consent, surgical intervention is an offence under criminal and civil law. Minors do not have full legal capacity and therefore have limited ability to consent. This increases as they grow older, reflecting the fact that rights, along with understanding, increase with age. This was accepted as being both realistic and inevitable by McHugh J who remarked in the High Court appeal: 'In an era in which many children over the age of 14 leave home, support themselves and enter into commercial dealings and de facto and sexual relationships, the Courts could hardly do otherwise' (339).
There was no support by the High Court for legal rights accruing only when the age of majority (18 years) was reached. As Deane J explains it (at 329): 'The tension between the law's recognition of the gradual transition from the disability of infancy to the full capacity of adulthood ... must be resolved in this country by the rejection of the extreme view that parental authority persists unabated until a child attains full adulthood'. The Gillick case in the UK, with its acceptance of the changing nature of parental rights and recognition of the increased abilities of children as they acquire understanding and maturity, was therefore accepted by the most senior Australian court (Harrison 1987).
Where younger children are concerned, parental consent to common surgical procedures such as the removal of an appendix or tonsils, or the setting of a fracture, is considered to be a valid exercise of guardianship authority, as would be decisions about the child's schooling, religious upbringing and place of residence. However, in addition to the mature minor consideration there are other grey areas. An emergency may arise where the guardians are unavailable to give consent, and it is considered impracticable to delay treatment. In such circumstances a doctor may operate without consent in order to prevent the patient (whether a minor or an adult) dying or suffering a permanent and serious disability. This would, in appropriate circumstances, enable treatment to be given in situations where parental consent was withheld for religious or other reasons.
Until the age of 18 is reached, the operation of the 'mature minor' rule allows a child with sufficient intellectual development and the capacity to understand the nature and effect of the relevant treatment to be capable of giving consent (Uniacke 1991). The child's capacity to understand the nature and possible effects of the particular treatment will vary, and his or her ability to give a valid consent must ultimately be decided by a court if there is a dispute.
In Australia, legislation regarding medical treatment is the responsibility of the states. Inevitably provisions vary, with South Australia and New South Wales having the most comprehensive laws. In New South Wales medical practitioners are protected from assault and battery charges where parental consent is given and a young person aged less than 16 receives treatment. If the young person is aged 14 or more, his or her consent is sufficient to prevent such action being taken. Again in New South Wales, no one under 16 can receive 'special medical treatment' unless the medical practitioner considers it necessary to save life or prevent serious damage to health, or unless a Supreme Court order permits it. 'Special medical treatment' includes medication or surgery intended or reasonably likely to render the person permanently infertile. It appears that as the legislation makes no mention of the position of a person between the ages of 16 and 18 in relation to such treatment, the mature minor rule applies (Uniacke 1991).
In all situations, regardless of any statutory provisions, parental consent is ineffective if given in relation to treatment which is not in the child's best interests. The amputation of a limb to enable a child to pursue a lucrative career as a beggar was mentioned in Marion's case as being an example of such treatment.
A STEP OF LAST RESORT?
The primary issues before the High Court focused on the ability of a minor (regardless of any intellectual disability he or she might have) to consent to medical treatment and, in the particular circumstance of incapacity to consent, on whether sterilisation is in or outside the scope of parental power. An important associated factor was whether sterilisation itself is a special case.
As the Northern Territory, where the family lived, has no legislation which took account of the dilemma faced in Marion's case, the issue of who (if anyone) had the authority to permit her to be sterilised had to be decided according to Family Law Act provisions, the Criminal Code of the Northern Territory and common law principles.
The majority judgement made a number of references to the issues of disability, the purposes and rationales for sterilisation, and its particular characteristics.
Sterilisation was seen by all seven High Court judges as being a most serious procedure involving the 'immediate and serious invasion of physical integrity with the resulting grave impairment of human dignity' (Brennan J at 322) and 'the destruction of a natural human attribute and the removal of an integral part of complete human personality' (Deane J at 331). McHugh J found (at 342) that the procedure can only be for the welfare of the child 'if the circumstances are so compelling and so likely to endure that they justify the invasive surgery or procedure involved'. Nevertheless, these three judges (with a number of provisos) considered the authority to permit sterilisation to be within the parent's guardianship rights, and therefore formed the minority in the Court.
The majority judgement described sterilisation as a step of last resort, which implies that alternative and less invasive procedures have all failed or that there is uncertainty about the workability of other procedures or treatment.
The majority also found that there were several factors which made the decision to authorise sterilisation a special case, and thereby differentiated it from many other activities consented to by parents as guardians of their children. They considered that, because of the difficulties associated with assessing the child's understanding and ability to consent, there is a significant risk that the wrong decision will be made. In addition, the social and psychological as well as biological consequences of the procedure warrant the provision of non-medical as well as medical opinions, which court authorisation would ensure. According to the majority, court authorisation would also protect children from possible competing and perhaps even conflicting interests, such as those of the primary care-givers, as it is the child's interests (rather than the interests of a carer) which would be the primary consideration of the court.
There are many reasons why the carers of a handicapped girl may wish to have her sterilised. Several of these reasons were referred to throughout the various Family Court and High Court judgements, although the possible motives of Marion's parents were not considered. Some mention of the possible motivation for radical intervention was also made in the Discussion Paper of the Law Reform Commission of Western Australia (1988). This paper listed eugenic arguments, hygienic reasons, the fear that intellectually disabled girls may be exploited sexually or that their carers are disadvantaged by the burden of caring for them, as previously being relied on to justify sterilisation, but concluded that the leave of a court should be a precondition.
Concern was also expressed by the High Court that acknowledgment of a general rule allowing guardians to consent to all kinds of medical treatment might justify procedures such as a clitoridectomy or the removal of a healthy organ.
ROLE OF THE FAMILY COURT
Once it was decided that parental authority was insufficient, the majority had no difficulty in determining that the Family Court was the appropriate forum for giving authority to sterilise in such a case. The welfare jurisdiction of that court, which was granted to it by the 1983 amendments, is similar to the parens patriae jurisdiction which historically gave the Crown an inherent jurisdiction to benefit those who cannot care for themselves because of age or some other incapacity. It is now the Family Court's task to determine whether the operations sought are in Marion's best interests.
THE QUANDARY OF THE LAW
The fact that out of a total of ten judgements involving three Family Court appeal judges and seven High Court judges five favoured court authorisation and five considered the decision to sterilise to be a guardianship right is an additional indicator of the complexity of the case, but is also somewhat misleading. Several judgements which favoured no court intervention nevertheless suggested that the outcome might be different if the sterilisation were performed other than for therapeutic purposes, or if it was not preceded by due inquiry and adequate consideration, or there was conflict between the interests of the child and her parents. The expense and delays associated with court involvement were also acknowledged by several judges.
It is also apparent that the presence of different state legislation might affect the outcome of any future case, particularly one emanating from New South Wales or South Australia.
This difficult and complex case brings to the forefront issues of parental responsibilities and powers - and their restrictions in certain circumstances. The decision will not be universally supported, and already the parents of disabled children have objected to the implication that they 'need to be protected from their parents though no evidence, apart from hearsay, was adduced in support' (Riddiford 1992). This parent also argued that the right to a reasonable quality of life is fundamental for an intellectually disabled person, although this will sometimes involve the curtailment or even elimination of competing basic rights.
The High Court's decision was delivered one year after the arguments were heard and the dilemma raised by the facts was acknowledged by all judges. Brennan J remarked (at 317): 'The questions raised by this case starkly demonstrate the quandary of the law when it is invoked to settle an issue which is a subject of ethical controversy and there are no applicable or analogous cases of binding authority.' Deane J referred to the issues involved being 'as much social or moral as they are legal' (at 334), with the answer being 'inevitably affected by personal perceptions of current social conditions, standards and demands'.
Now that the broad principle of parental authority has been determined, the Family Court's reasoning in deciding what is best for Marion in this particular case will be followed with a good deal of interest.
- Edgar, D. (1988), 'Early childhood and poverty: the need to invest more, earlier in our children', Address to Annual Family Day Care Conference, Adelaide, November.
- Harrison, M. (1987), 'Adolescent issues and the law', Family Matters, No.19, pp.18-20.
- Law Reform Commission of Western Australia (1988), 'Discussion Paper on Medical Treatment for Minors'.
- Riddiford, R. (1992), 'When will the parents of the disabled get a say?', Letter to the editor, The Age, 8 June.
- Uniacke, P. (1991), 'Children's consent to medical treatment: implications for the medical profession', Law Society Journal November, pp.56-58.
- Wade, J. (1988), 'Children's rights: who knows best', Current Affairs Bulletin, April.
In this issue
- Families in unemployment
- Extended family in Australia: The family beyond the household
- Keeping in touch: Extended family networks
- Capital gains and locational disadvantage
- Young adults and family change: Coping with parental separation, divorce and repartnering
- Adult in the eyes of the state
- Conceptualising family life and family policies
- No more than a phone call away
- Families after marriage breakdown
- Work and family values, preferences and practice: Intergenerational initiatives
- Caring families