Secretary, Department of Health and Community Services v JWB (Marion's Case)
175 CLR 218106 ALR 385
(Judgment by: Deane J) Court:
Judges:
Mason CJ
Brennan J
Deane JDawson J
Toohey J
Gaudron J
McHugh J
Judgment date: 6 May 1992
Canberra
Judgment by:
Deane J
List of Judges
DEANE J. The essential facts, the relevant statutory provisions and the questions in the stated case are set out in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ. That judgment also contains, as do the judgments in the Full Court of the Family Court [F188] , a detailed examination of the four earlier cases in this country involving the proposed sterilization of a girl or young woman [F189] and of some of the relevant cases in other common law jurisdictions [F190] . It can be said at once that, subject to the qualification mentioned below, I agree with the conclusion reached by their Honours to the effect that the authority of parents does not, in the absence of special statutory provisions, extend to authorizing surgery involving the sterilization of a profoundly intellectually disabled child for other than the conventional medical purposes of preserving life and treating and preventing grave physical illness. The reasoning which leads me to that conclusion diverges, however, from that of their Honours in that, as will be seen, it is based not upon a denial of the authority of parents to authorize such surgery in any circumstances but upon the obligation of the parents of a child to exercise their authority in relation to the child in serious matters only after due inquiry about, and adequate consideration of, what truly represents the interests of the child. The qualification is that, for the reasons given in this judgment, it appears to me to be possible to identify one category of case in which surgery for other than conventional medical purposes is so obviously in the interests of the welfare of such a child that there is no basis in legal theory (or, for that matter, in considerations of policy) for insisting that parents, who have obtained appropriate multi-disciplinary medical advice to establish that the case falls within that special category, subject themselves and their families to the costs, delays and emotional strain of court proceedings.
Section 63F(1) of the Family Law Act 1975 (Cth) (the Family Law Act) provides that, subject to any order of a court for the time being in force, each of the parents of a child who has not reached eighteen years is a guardian of the child. Section 63E(1) reads:
"A person who is the guardian of a child under this Act has responsibility for the long-term welfare of the child and has, in relation to the child, all the powers, rights and duties that are, apart from this Act, vested by law or custom in the guardian of a child, other than:
- (a)
- the right to have the daily care and control of the child; and
- (b)
- the right and responsibility to make decisions concerning the daily care and control of the child."
Section 63E(2) provides that a person who has or is granted custody has the rights and the responsibility referred to in pars (a) and (b) of s 63E(1) (see above). It follows that, in a case such as the present where the parents are guardians and have the custody of a child, they are responsible for the long-term welfare of the child, have "the right to have the daily care and control of the child", have "the right and responsibility to make decisions" concerning that daily care and control, and enjoy the general powers, rights and duties "vested by law or custom in the guardian of a child". In my view, "the right to have the daily care and control" of a child under eighteen years and "the right ... to make decisions" in relation thereto referred to in s 63E(1) and (2) should be understood in the context of the common law and do not subject such a child to greater control and authority than that possessed at common law by parents who have custody. That being so, and subject to some presently irrelevant variations, the effect of Family Law Act is, as regards infants in the custody of their parents, to grant statutory recognition and confirmation of the common law powers, rights and duties of such parents [F191] . In the absence of any Northern Territory statutory provisions dealing with consent to non-emergency surgery or medical treatment in the case of an infant, it is necessary to identify the nature and extent of those common law powers, rights and duties for the purpose of answering the questions before the Court in this case.
The age at which a person becomes an "adult" in this country is universally fixed by legislation as eighteen. That does not mean that a person lacks all legal capacity until she or he reaches that age, or that the views of even a young child will ever be completely irrelevant [F192] . The common law has long recognized that the transition from the complete legal disability of the newly-born baby to the full capacity of the mentally competent adult is, in many respects, a gradual one [F193] . Well before a young person reaches the age of eighteen, she or he possesses legal capacity in a variety of different areas: the capacity to commit (and to be liable to be punished for) crimes requiring criminal intent; within limits, the capacity to make a contract and to be guilty of a tort; subject to any necessary authorization, the capacity to marry. As Lord Fraser of Tullybelton pointed out in Gillick v. West Norfolk AHA [F194] , a girl under sixteen can even give sufficiently effective consent to sexual intercourse so as to negative a charge of rape. Even when the law insisted that a person did not become an adult until the age of twenty-one, the common law recognized that, at least in relation to custody cases, a male attained the age of discretion at fourteen years and a female at sixteen years [F195] . Once the age of discretion was reached, habeas corpus would ordinarily no longer issue at the suit of the father to force an unwilling child to return to his custody [F196]
It must, however, be acknowledged that the cases contain some extreme statements (and decisions) about the nature and extent of "the sacred right of a father over his own children" [F197] up until the age of majority. Thus, it was said by Sir William Brett M.R. in In re Agar-Ellis. Agar-Ellis v. Lascelles [F198] that a father was merely "insisting upon his right" when he refused to allow a daughter who was nearly seventeen "to live with her mother, and (had) put her into many and various places to live" [F199] to an extent that led the daughter to feel that she was "always amongst strangers" and "longing to see some of (her) relations" [F200] . The actual decision in In re Agar-Ellis was based on an assertion of almost absolute paternal authority until the age of twenty-one [F201] and was to the effect that the father was entitled to prevent free access and correspondence between the mother, who was not suggested to have been of bad character, and the daughter. The father was recognized [F202] as having, when living, "the right to the custody and tuition of his children whilst they are under the age of twenty-one years" and "power by a will, or by a deed, to dispose of the custody and tuition of his child or children for and during such time as he or they shall respectively remain under the age of twenty-one years or any lesser time".
Notwithstanding that the daughter in In re Agar-Ellis was already a ward of court, it was held that it was outside the power of the Chancery Court "to go into the question as to what (the court thought was) for the benefit of this ward" [F203] The guiding principle was said to be that "when, by birth, a child is subject to a father, ... the Court should not, except in very extreme cases, interfere with the discretion of the father, but leave to him the responsibility of exercising that power which nature has given him by the birth of the child" [F204] .
The tension between the law's recognition of the gradual transition from the disability of infancy to the full capacity of adulthood and such extreme judicial statements of the extent of the rights of a father with respect to his legitimate children who have not reached the age of full 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. For one thing, the basis of that extreme view was not merely that the father enjoyed the right of legal guardianship. It was a perception of "the natural rights of a father" which were "greater ... than those which a testamentary guardian, or any other guardian, can have" [F205] . That perception could not survive, without significant qualification, either the law's recognition, under the impetus of legislative developments, that the position of the father in relation to a child was "not superior to that of the mother" [F206] or the law's increasing insistence that, while it is commonly convenient and accurate to speak of parental "authority" and parental "powers", the relationship between parents and a child is, from the parents' point of view, more appropriately expressed in terms of duty [F207] . For another, even in the nineteenth century, the jurisdiction of the Chancery Court to intervene to protect the welfare of a child in the exercise of the authority of the Crown as parens patriae was considerably more extensive than was acknowledged by such extreme statements of the extent of the father's "natural" or "sacred" rights as those quoted above. Thus, Lindley L.J. in Thomasset v. Thomasset [F208] equated the "rights" of a father with those of a "legal guardian" and pointed out [F209] that in the exercise of the parens patriae jurisdiction, "the rights of fathers and legal guardians were always respected, but controlled to an extent unknown at common law by considering the real welfare of the infants". His Lordship added [F210] that the effect of the Judicature Act 1873 (UK) [F211] was that all the Divisions of the English High Court were required to "recognize the cardinal principle on which the Court of Chancery always proceeded, namely, that in dealing with infants the primary consideration is their benefit". In this Court, it has consistently been accepted as "settled law that in the exercise of the paternal jurisdiction of the Court of Chancery the dominant matter for the consideration of the Court is the welfare of the child" [F212] Indeed, in a modern context, it is preferable to refer to the traditional parens patriae jurisdiction as "the welfare jurisdiction" and to the "first and paramount consideration" which underlies its exercise as "the welfare principle" [F213]
The most important influence making it inevitable that the extreme view of parental authority would yield to the common law's traditional recognition of the gradual development of the legal capacity of a young person to decide things for herself or himself has, however, undoubtedly been the social fact of the increasing independence of the young. In times when it is not unusual for fifteen and sixteen-year-olds to be supporting themselves as members of the workforce, to insist upon complete parental authority up until the age of eighteen would be to propagate social an achronism as legal principle. In the context of contemporary circumstances, the extreme statements in nineteenth century cases have, depending upon preference for irony, understatement or plain speaking, rightly been dismissed as "superbly Victorian" [F214] , "historical curiosity" [F215] or simply "horrendous" [F216]
The effect of the foregoing is that the extent of the legal capacity of a young person to make decisions for herself or himself is not susceptible of precise abstract definition. Pending the attainment of full adulthood, legal capacity varies according to the gravity of the particular matter and the maturity and understanding of the particular young person. Conversely, the authority of parents with respect to a young person of less than eighteen years is limited, controlled and varying. It is limited to what is in the interests of the welfare of the young person. That being so, it can, at least as regards really serious matters, be validly exercised only after due inquiry about, and adequate consideration of, what truly represents the welfare of the child. It is controlled in that, if it is exceeded or if it is exercised other than for the benefit or welfare of the child, a court invested with the welfare jurisdiction of the old Chancery Court has jurisdiction to intervene to prevent excess, abuse or neglect of authority. Such a court can, when its jurisdiction is invoked, make an order directed to ensuring that what should, within the limits imposed by financial and other practical constraints, be done or not done in the interests of the welfare of an infant is done or not done. It is varying in that, to adopt Lord Denning M.R.'s expression [F217] , it is a "dwindling right" which diminishes as the legal competence of the child to make decisions for herself or himself increases. That means that the relationship between a child and her or his parents will ordinarily pass through a transitional stage in which authority is shared. It is, however, unnecessary to discuss that aspect of parental authority in the present case since it is common ground that the fourteen-year-old girl ("Marion") in respect of whom an order is sought authorizing the performance of a hysterectomy and ovariectomy is, by reason of intellectual disability, presently quite incapable of having an informed view or making a responsible decision about whether the operation should be performed. In these circumstances, the authority of the parents is not diminished by reason of any relevant decision-making capacity of the child.
There was some discussion in the course of argument about whether the Family Court is invested with the traditional welfare jurisdiction. At least as regards a child of a marriage, such as Marion, the combined effect of Family Law Act is to confer jurisdiction upon the Family Court to make such orders "as it considers proper" [F218] "in relation to the welfare of ... a child" [F219] . In my view and subject to constitutional limitations (whether overriding, or recognized by, the legislation), the jurisdiction so conferred upon the Family Court corresponds with the welfare jurisdiction of the old Chancery Court (so far as it relates to minors) freed from the preliminary requirement of a wardship order [F220] . There is no statutory provision applicable to expand or modify parental power or the jurisdiction of the Family Court in the Northern Territory in the special case of an operation involving the irreversible sterilization of an incapable child. That being so, the extent of the relevant authority of Marion's parents and the scope of the relevant jurisdiction of the Family Court fall to be determined by reference respectively to the common law powers of parents and the welfare jurisdiction exercised by courts.
In the light of the above, one can identify two broad common law propositions relating to the authority of parents to authorize surgery in the case of a relevantly incapable child such as Marion. By a relevantly incapable child ("an incapable child"), I mean a child who is, as a matter of fact, completely unable to make a reasoned decision for herself or himself about the desirability of the particular treatment. The first of those propositions is that parental authority exists to authorize such surgery for the purpose, and only for the purpose, of advancing the welfare of the child. It does not extend to authorizing surgery because of a perception that it is in the interests of those responsible for the care of the child or in the interests of society in general (e.g. for eugenic reasons). That which constitutes the welfare of a child in a particular case falls to be determined by reference to general community standards, but making due allowance for the entitlement of parents, within the limits of what is permissible in accordance with those standards, to entertain divergent views about the moral and secular objectives to be pursued for their children [F221] . The second broad proposition is that, at least in relation to a serious matter such as a major medical procedure, parental authority can be validly exercised only after due inquiry about, and adequate consideration of, what truly represents the welfare of the child in all the circumstances of the case. Those two broad common law propositions appear to me to be beyond serious dispute. Ordinarily, their application will be straightforward. Most surgery is for the conventional medical purpose of treating or preventing physical illness. Competent medical advice that the particular surgical procedure is necessary to preserve life or to treat physical illness will suffice to satisfy the requirement of due inquiry and adequate consideration. Indeed, at least where medical opinion is unanimous in recommending immediate major surgery to avoid death or to treat or prevent grave illness or physical incapacity, parental duty will ordinarily dictate the authorization of such surgery. However, circumstances may exist where the purposes of major surgery lie outside or extend beyond those conventional medical purposes or where the detriment of grave adverse consequences must be weighed against medical advantages. While the above propositions remain applicable to identify the extent and regulate the exercise of parental authority in respect of an incapable child in such circumstances, their application may be complicated and uncertain by reason of difficulty in determining the content of controlling community standards or in deciding what is truly conducive to the overall welfare of the particular child in all the circumstances. It is so in the category of case with which the Court is at present concerned.
Irreversible sterilization involves the destruction of a natural human attribute and the removal of an integral part of complete human personality. Its eventual psychological consequences will commonly be unforeseeable. They may include emotional devastation, destruction of self-esteem and perceived deprivation of an essential element and purpose of life itself. Nonetheless, circumstances can arise in which surgery involving irreversible sterilization is, according to general community standards, clearly conducive to the welfare of an incapable child. The most obvious example of such circumstances is where such surgery is necessary to preserve the life of the child: e.g., excision or other treatment to avert death by reason of cancer of the ovaries or testicles. Where that is so, it is, as a matter of general principle, within the authority of parents to authorize the surgery in the same way as it is within the authority of parents of an incapable child to authorize the amputation of an incurably gangrenous limb. Similarly, the parents of an incapable child have authority to authorize surgery involving irreversible sterilization in a case where such surgery is, according to competent medical advice, necessary for the conventional purpose of treating or preventing grave physical illness. In such cases, the common law requirement of due inquiry and adequate consideration is satisfied by competent medical advice, including or supplemented by appropriate multi-specialist and inter-disciplinary input (e.g., psychological or vocational).
In the present case, the reasons for the suggested surgery are not purely medical. In some judgments in the decided cases, and in argument in the present case, the phrases "therapeutic surgery" and "non-therapeutic surgery" have been used to distinguish between surgery for the traditional medical purpose of preserving life or directly treating or preventing physical illness and surgery for other or wider purposes, such as the enhancement or preservation of the quality of life. The use of those phrases in a context such as the present must, however, be accompanied by two important caveats. The first is that the borderline between "therapeutic" and "non-therapeutic" surgery is far from precise and, particularly where psychiatric illness is involved, may be all but meaningless. In particular, surgery involving the sterilization of a young intellectually disabled female to avoid the special and aggravated problems of menstruation would not appear to me to be for conventional medical purposes but is often described as being for "therapeutic purposes" [F222] . The second is that the common law does not, as a matter of principle, draw a general distinction between "therapeutic" and "non-therapeutic" surgery for the purposes of parental authority [F223] .
Even in the area of surgery for other than conventional medical purposes, there are circumstances in which it plainly lies within the authority of the parents of an incapable child to authorize surgery on the basis of medical advice. Plastic surgery to correct serious disfigurement for purely cosmetic purposes is not "therapeutic" within the accepted meaning of that word [F224] and constitutes an obvious example. Male circumcision for perceived hygienic - or even religious - reasons is another. On the other hand, one can think of equally obvious examples where parental authority would not extend to authorize surgery for other than conventional medical purposes even though it was thought by the parents to be for the ultimate welfare of an incapable child. The surgical amputation of the right hand of a child who was an habitual "pickpocket" might conceivably be seen by parents who were fanatical biblical literalists [F225] as being justified as conducive to the child's overall welfare. The authorization of such an operation would be beyond parental authority, however, for the reason that it could not, according to the standards of our society, properly be seen as so justified. Similarly, there are circumstances in which it is plain that, according to the general standards of our society, surgery involving sterilization of an incapable child for reasons other than the conventional medical ones of preventing death or treating or preventing physical illness is or is not clearly in the interests of the welfare of the child. The New Zealand case of Re X [F226] provides a convenient example of circumstances in which such surgery is plainly in the interests of the welfare of an incapable child.
The judgment in Re X was delivered on X's fifteenth birthday. She was a profoundly multi-handicapped girl with the intellectual capacity (other than as regards gross motor skills such as walking) of a three to eight-month-old infant. She could not speak, was not toilet-trained despite intensive efforts by both her family and the staff of the special school which she attended, had no "control whatever over her bodily functions" [F227] and was, and would obviously remain, quite incapable of understanding human relations, sex or human procreation. This lack of understanding and her inability to express herself meant that the only indications that she gave when sustaining pain were non-specific reactions which included fits of irritability capable of lasting for an entire day and involved threatening conduct and violence towards others and a degree of self-mutilation. The onset of menstruation was imminent and the overall evidence, both lay and medical, led inevitably to the conclusion that the child's reaction to menstrual pain would be uncomprehending irritability involving likely violence and some self-mutilation. X's parents, who were unusually knowledgeable about retarded children and heroically devoted to X and her interests, were convinced that she could not cope either with menstrual periods or with the associated hygienic problems. The trial judge, Hillyer J., summarized [F228] their approach, with which he agreed, as follows:
"X's parents believe there is very little point in her having monthly periods for the next 30 years. She has a very strong heart and is likely to live that long. She will never be able to have children, and that function in her life is quite unnecessary. They believe X goes through enough pain and agony without having to deal with monthly periods as well. She has had to have operations to cure club feet and to straighten her back. She came through these well, and in hospital was given pain relief mainly by suppositories because of the difficulty in getting her to swallow anything, let alone giving her injections. The mother says X is hopeless with medicines. She will not let other people touch her or put anything in her mouth except food."
In circumstances where there was no prospect of any significant improvement in X's condition as she grew older, it was obvious - as Hillyer J. found [F229] - that it was "absolutely vital" that "she should not become pregnant" since she "most certainly could not cope with motherhood, pregnancy or labour" and the "only way she could become pregnant would be by being raped, because she is unable under any circumstances to consent". The application by X's parents for an order consenting to a hysterectomy operation upon X was supported by medical evidence that the surgery was desirable and that there was no less drastic treatment which would, in the circumstances, be appropriate. Hillyer J. held that the High Court of New Zealand had jurisdiction to make such an order under its residual parens patriae jurisdiction [F230] and that, in the circumstances of the case, such an order should be made. His Honour made clear [F231] that he saw the purpose of the operation as not sterilization but the prevention of menstruation. That being so, the importance of his Honour's conclusion that it was "absolutely vital" that X should never become pregnant was that it turned what would, in the case of a normal child, have probably been a decisive countervailing consideration into a supporting factor.
As I have indicated, the reason for my referring at length to the facts of Re X is that the case provides an example of circumstances in which it is quite clear that surgery involving irreversible sterilization for other than conventional medical purposes is necessary for the welfare of an incapable child. Once it is recognized that parental authority to authorize medical treatment extends, in some circumstances, to the authorization of surgery involving irreversible sterilization (e.g. for the treatment of serious illness), there is no basis in legal principle for excluding from the scope of that parental authority circumstances such as those involved in Re X. Certainly it cannot be said that such surgery for the treatment of a serious illness, in a case where it involves the sterilization of a mentally normal child, is more obviously for the overall welfare of the child than surgery involving irreversible sterilization in a case such as Re X where there are, from the point of view of the child's interests and welfare, compelling physical and social reasons for such surgery and where there is no significant countervailing detriment. It is true that there is a passage in the judgment of La Forest J. in Re Eve [F232] which, if read in isolation, suggests that the Supreme Court of Canada accepted the proposition that it can never be safely concluded that "non-therapeutic sterilization" is for the benefit of a person incapable of consenting to it. Re Eve was, however, a case involving the suggested sterilization for contraceptive purposes of an intellectually disabled woman of whom it was said [F233] that "there is no evidence that giving birth would be more difficult for Eve than for any other woman". The circumstances of the case were simply not comparable to a case such as Re X and it seems to me to be quite clear that the references to "non-therapeutic sterilization" in the judgment of La Forest J. should not be understood as intended to cover a case where what is involved is surgery upon a profoundly mentally disabled girl to prevent extraordinary difficulty, discomfort and pain which would accompany menstruation [F234] l Treatment) (1991) 2 FLR, at p 586 and Re GF (A Patient) (1991) FCR, at p 787. Be that as it may, I respectfully agree with Lord Bridge of Harwich [F235] that:
"To say that the court can never authorise sterilisation of a ward as being in her best interests would be patently wrong. To say that it can only do so if the operation is 'therapeutic' as opposed to 'non-therapeutic' is to divert attention from the true issue, which is whether the operation is in the ward's best interest, and remove it to an area of arid semantic debate as to where the line is to be drawn between 'therapeutic' and 'non-therapeutic' treatment."
Nor can such a confinement of the authority of parents be justified by reason of the gravity of irreversible sterilization since, as has also been seen, it is plainly within the authority of parents to authorize surgery involving irreversible sterilization in at least some circumstances. Indeed, the consequences of surgery involving irreversible sterilization are immeasurably less grave in a case, such as Re X, where it is meaningless to speak of the fundamental right to procreate than they are in the case of such surgery upon an intellectually normal child for conventional medical purposes.
On the other hand, the requirement that parental authority to authorize surgery be exercised for the purpose, and only for the purpose, of advancing the welfare of the child necessarily excludes from the scope of that authority some categories of case involving the surgical sterilization of an incapable child for other than conventional medical purposes. The most obvious example of such a category of case is surgery for so-called "eugenic" purposes. Whatever may have been the approach accepted in other times and in other places, surgery upon a retarded person cannot, within the limits imposed by general community standards in this country, be justified by eugenic or "public welfare" reasons such as those advanced by Holmes J. in Buck v. Bell [F236] . Nor can such surgery upon a mentally retarded child be justified as necessary for the welfare of the child merely because it will make easier the task of those responsible for the child's protection and care. That is not, of course, to deny that the easing of the burden of protecting and caring for an incapable child may, in most cases, be also at least indirectly in the interests of the welfare of the child.
Between the extreme categories of case where surgery involving irreversible sterilization plainly can and plainly cannot be justified as necessary for the welfare of an incapable child are other cases in which there may be room for legitimate differences of opinion about what promotes the welfare of an incapable child in the circumstances of a particular case. Within that area, the welfare principle embodied in the common law propositions stated earlier operates at two levels to define the extent of parental authority. If the circumstances of a particular case are such that surgery involving irreversible sterilization can reasonably be seen, according to general community standards, as being necessary for the welfare of the particular child, it will lie within the scope of parental authority to authorize it. That parental authority is, however, confined to the authorization of what the parents, after due inquiry and adequate consideration, consider to be in the interests of the welfare of the child. The question arises as to what represents due inquiry and adequate consideration in such cases. That question must necessarily be answered in the context of any relevant jurisdiction of the courts or statutory tribunals to determine what is in fact in the interests of the welfare of a particular incapable child. It is common ground that, subject only to the continuing existence of some traditional jurisdiction in the Supreme Court, the only relevant jurisdiction as regards non-emergency surgery upon a child in the Northern Territory is that originally vested in the Family Court.
In a case where parental authority existed in relation to an incapable child, the welfare jurisdiction of the Chancery Court was supervisory in the sense that it was exercisable only where actual or threatened abuse or neglect of that parental authority justified the making of a wardship order. While the jurisdiction of the Family Court to make orders for the welfare of a child is not structured upon a wardship order, it nonetheless remains, in a case where the parents retain full parental authority, primarily supervisory in its character. In its exercise, the Family Court must give due weight to genuine parental views about what is and what is not in the interests of the welfare of the particular child and, in an appropriate case, recognize that there is scope for parental decision [F237] . The welfare jurisdiction of the Chancery Court was not, however, exclusively supervisory. It was neither derivative from the rights and responsibilities of parents [F238] nor confined to what lay within parental - or paternal - authority [F239] . It could, for example, be invoked, at the suit of the parents themselves, to make binding orders for the protection of the child which were plainly beyond the powers of the parents [F240] . It could be invoked to override and determine the authority of the parents [F241] . Similarly, the fact that the jurisdiction of the Family Court is primarily supervisory in the case of an infant in the custody of her or his parents does not preclude the Family Court from intervening in a case where it considers that, giving due weight to genuine parental views, the gravity of the question involved and the protection of the welfare of the child require its intervention [F242] . Where appropriate, it can, in such a case, override a parental refusal to authorize necessary surgery [F243] . In such a case, the preferable course will ordinarily be to appoint a guardian of the child for the limited period necessary for the authorization and performance of the surgery. If, however, circumstances were to arise in which there was no appropriate person prepared to accept appointment as such a temporary guardian, the court could, in my view, itself directly authorize it [F244] . More important for present purposes, the jurisdiction extends to granting, at the suit of a parent or interested party, declaratory or other relief in relation to the existence and proper exercise of parental authority. That jurisdiction extends to the making of a declaration that a parent or the parents of an incapable child would or would not, in the particular circumstances of a case, be justified in authorizing surgery involving irreversible sterilization.
In In re B (A Minor) [F245] , Lord Templeman expressed the opinion that, in England, "sterilisation of a girl under 18 should only be carried out with the leave" of a judge of the Family Division of the English High Court. The other members of the House of Lords in that case did not express any opinion on that question but a similar view was expressed by Lord Goff of Chieveley in the case of an operation for the sterilization of an intellectually disabled adult woman who lacked the capacity to consent [F246] . There are powerful considerations which support those views, including the grave consequences, both physical and psychological, of irreversible sterilization and the need to protect the weak and vulnerable from eugenic and utilitarian theories which discount the importance of human integrity and complete personality and which are repugnant to the standards of our community. Those considerations also include the fact that there may well exist a divergence or conflict - sometimes unappreciated - between the interests of the incapable child and the interests of those who are or will be responsible for looking after her or him and for caring for any offspring. In a context where the factors militating against surgery involving sterilization will not be confined to medical considerations, the courts are likely to be better able than medical practitioners, even acting as members of a multidisciplinary team, to ensure that due regard is paid to, and only to, relevant factors in ascertaining what is truly in the interests of the welfare of the child. All these considerations strongly support a conclusion that the effect of the requirement that parental authority be exercised only after due inquiry and adequate consideration is that, in the absence of any applicable statutory procedure or jurisdiction in any other competent tribunal, the parents of an incapable child must obtain a declaratory order from the Family Court (or some other court vested with applicable welfare jurisdiction) before they can validly authorize surgery involving irreversible sterilization for a purpose other than the conventional medical ones of preserving life and treating or preventing grave physical illness.
On the other hand, one cannot but be conscious of the undeniable fact that a general requirement that the parents of an incapable child maintain proceedings for declaratory relief in the Family Court before authorizing such surgery would represent an extraordinarily onerous burden upon them. Proceedings in the superior courts of this country are commonly protracted [F247] and, at least in the many cases where legal aid is not provided, oppressively expensive [F248] . The delays which are likely to be involved in such litigation are notorious. Inevitably, proceedings about whether surgery involving irreversible sterilization is in the interests of the welfare of an incapable child will impose a heavy and additional load of anxiety upon the shoulders of caring parents. A consequence of such a general requirement would be that the understandable reluctance of parents to become involved in such legal proceedings would prevent such surgery taking place in at least some cases where it was obviously for the welfare of an incapable child.
What then is the legal resolution of the different considerations favouring and militating against a conclusion that the common law requirement of due inquiry and adequate consideration can only be satisfied by recourse to the Family Court (or to the Supreme Court exercising cross-vested or any residual jurisdiction) in the case of surgery involving the irreversible sterilization of an incapable child in the Northern Territory? That question arises in this Court as a question of law. The processes of legal reasoning by induction and deduction from legal principle are, however, inadequate to provide an answer to it. The reason why that is so is that, while the question arises in a legal context, the issues which it involves are as much social or moral as they are legal and the answer to it is inevitably affected by personal perceptions of current social conditions, standards and demands. The answer which I would give to it is that the reconciliation of the conflicting considerations requires that a distinction be drawn between those cases where the need for such surgery in the interests of the welfare of the child is, according to general community standards, obvious and those cases where it is not. In a case where such surgery is obviously necessary, a requirement of court approval would impose an unjustifiable burden upon the parents of an incapable child. More important, the requirement would itself be undesirable in that its only significant effect would be to prevent parents, who were not prepared to subject themselves and their families to the expense, inconvenience and anxiety of court proceedings, from authorizing surgery which was obviously in the interests of the welfare of the child. In a case where such surgery is not obviously necessary, the need to protect an incapable child from unjustified surgery involving irreversible sterilization outweighs all other considerations. Notwithstanding the expense, inconvenience and other disadvantages of court proceed ings, it appears to me that, in the absence of some special statutory procedure, such proceedings represent the only adequate protection.
In what has been written above, I have already identified the two principal categories of case in which surgery involving irreversible sterilization of an incapable child is, according to general community standards, obviously necessary for the welfare of the child. The first is where such surgery is immediately necessary for conventional medical purposes, that is to say, the preservation of life or the treatment or prevention of grave physical illness.
The second category is that of which Re X constitutes an example [F249] . A case will fall into this category if, but only if, it involves surgery upon a girl and the following conditions are all clearly and convincingly satisfied [F250] . First the child is so profoundly intellectually disabled that she is not and never will be capable of being a party to a mature human relationship involving informed sexual intercourse, of responsible procreation or of caring for an infant. Second, the surgery must be necessary to avoid grave and unusual problems and suffering which are or would be involved in menstruation which has either commenced or which is virtually certain to commence in the near future. These problems could arise from inability to comprehend or cope with pain; a phobic aversion to blood; a complete inability to cope with problems of hygiene with psychiatric or psychological consequences; or any of a variety of other possible complications. The problems or suffering which would result from menstruation must be such that it is plain that, according to general community standards, it would be quite unfair for the child and ultimate adult to be required to bear the additional burden of them. Third, the surgery must be a treatment of last resort in the sense that no alternative and less drastic treatment would be appropriate and effective. I would expect that the second and third requirements could not be satisfied in many cases until menstruation had actually commenced. Fourth, there must be competent medical advice from a multidisciplinary team, acting on the basis of appropriate paediatric, social and domestic reports, that the above conditions are all satisfied. When parents have received such multidisciplinary advice, they will have discharged the obligation of due inquiry and adequate consideration and will be justified in authorizing the particular surgery.
The question arises whether there are any other categories of case in which surgery involving irreversible sterilization of an incapable child can be said to be obviously necessary for the welfare of the child. On balance, it seems to me that there are not. Like Hillyer J. in Re X [F251] , Anderson J.A. in Re K and Public Trustee [F252] and Brown P in Re E (A Minor) (Medical Treatment) [F253] , I would draw a distinction between the category of case (see above) in which the primary purpose of the surgery is to prevent pain and extraordinary behavioural and personal problems which are, in the circumstances of a particular case, involved in menstruation and the case where the purpose of the operation is sterilization for contraceptive purposes. Notwithstanding the views expressed by the Supreme Court of Canada in Re Eve [F254] , it appears to me that there may well be circumstances in which surgery involving sterilization of a profoundly intellectually disabled child for contraceptive purposes may, in the circumstances of a particular case, be necessary for the welfare of the child. I am not, however, persuaded that sterilization for contraceptive purposes could ever be said to be so obviously necessary for the welfare of an incapable child that parents would be justified in dispensing with the impartial and independent advice of a court or other statutory tribunal which has the capacity to deliver an authoritative and binding opinion on the question.
The judges of the Family Court have, in earlier cases and in the present case, made evident their appreciation of the multiplicity of factors which may be relevant to the question whether parents would be justified in authorizing surgery involving irreversible sterilization in the circumstances of a particular case. A list of a number of those factors is set out near the end of the thoughtful and helpful judgment of Hillyer J. in Re X [F255] . His Honour, in my view correctly, places at the forefront of those factors the need to identify the child's level of functioning and development and to consider whether there is any real likelihood of a significant increase in the child's capabilities in the future. The importance of those two aspects cannot be over-emphasized. In dealing with them, a court must be vigilant against the danger of making false and adverse assumptions about the ability of an intellectually disabled person to become a party to a mature human relationship involving informed sexual relations, to engage in responsible procreation and to care for an infant. A court must also be vigilant against the danger of discounting the possibility of significant future improvement in the capabilities of an intellectually disabled person with regard to those matters. Indeed, unless the case is one in which there is no real likelihood that the child in question will ever be able to make a responsible decision for herself or himself about surgery involving irreversible sterilization, it is difficult to envisage circumstances in which a court would be justified in pre-empting that decision in a case where such surgery was not at that time necessary for compelling medical or quasi-medical (e.g. the near certainty of trauma or psychological damage) reasons.
The material before the Court in the present case does not establish that the case falls within either of the categories of case (conventional medical reasons or the Re X type of case) in which it can be said that surgery involving sterilization of an incapable girl is obviously justified in the interests of the child's welfare. On the other hand, the material before the Court does not seem to me to preclude the possibility that the present case does fall within the second of those categories. In these circumstances, I would answer the questions in the stated case as follows:
Question: (1) Can the applicants, as joint guardians of the child, Marion, lawfully authorise the carrying out in the Northern Territory of a sterilization procedure upon the said child without an order of a court?
Answer: The applicant may only validly authorize the carrying out of the sterilization procedure upon Marion after due inquiry and adequate consideration. Unless the case falls within one of the categories identified in this judgment, such due inquiry and adequate consideration involves obtaining an order of a court.
Question: (2) If 'no' to question 1, does the Family Court of Australia have jurisdiction:
- (a)
- to authorise the carrying out of such a procedure; or
- (b)
- to enlarge the powers, rights or duties of the applicants as guardians of the said child to enable them to lawfully authorise the carrying out of such a procedure; or
- (c)
- to approve the consent of the applicants, as guardians of the said child, to the proposed procedure to make the procedure lawful?
Answer: The Family Court has jurisdiction to make an order declaring whether, in the circumstances of the particular case, the parents of Marion would or would not be justified in authorizing the proposed sterilization procedure. Otherwise, it is unnecessary to answer this question.
Question: (3) Which (if any) of the steps referred to in (a), (b) or (c) of question 2 is required by law?
Answer: Unless the case falls within one of the categories identified in this judgment, Marion's parents could not validly authorize the proposed sterilization procedure without a court order to the effect that they would be justified in so doing.
There are two further matters which should be briefly mentioned. The first is that, since the argument of the present case, any doubt about the jurisdiction of the Court to entertain this appeal was removed by the decision of the Court in Mellifont v. Attorney-General (Qld) [F256] . The other is that it was submitted by the learned Solicitor-General for New South Wales that where, as in that State, special statutory provisions exist prohibiting sterilization procedures on a child under sixteen years for other than urgent medical reasons without the consent of the Supreme Court [F257] (or, under the cross-vesting legislation, the Family Court) [F258] , those statutory provisions are applicable to control the general welfare jurisdiction of the Family Court. It is unnecessary to express a concluded view about the correctness of that submission since, as has been seen, there is no such statutory provision applicable in the Northern Territory. In deference to the careful argument of the Solicitor-General, however, I would indicate that I see considerable force in the submission. Certainly, my conclusion that there are circumstances where a sterilization procedure can be authorized by parents in the Northern Territory for other than urgent medical reasons without the consent of the Family Court or the Supreme Court of the Territory should not be understood as automatically applicable to a jurisdiction, such as New South Wales, in which special statutory provisions have been enacted.