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Secretary, Department of Health and Community Services v JWB (Marion's Case)

175 CLR 218
106 ALR 385

(Judgment by: Mason CJ, Dawson J, Toohey J, Gaudron J) Court:
HIGH COURT OF AUSTRALIA

Judges:
Mason CJBrennan J
Deane J

Dawson J
Toohey J
Gaudron JMcHugh J

Hearing date: 30 April 1991; 1 May 1992, 2 May 1992
Judgment date: 6 May 1992

Canberra

Judgment by:
Mason CJ
Dawson J
Toohey J
Gaudron J

List of Judges

MASON CJ, DAWSON, TOOHEY AND GAUDRON JJ. Marion, the pseudonym of the teenager who is the subject of this appeal, is now 14 years old. She suffers from mental retardation [F1] , severe deafness and epilepsy, has an ataxic gait and "behavioural problems". She cannot care for herself. Her parents, who were married in 1976 and who, with their children, are residents of the Northern Territory, applied to the Family Court of Australia for an order authorising performance of a hysterectomy and an ovariectomy (referred to in the application as ovarienectomy) on Marion; alternatively, a declaration that it is lawful for them to consent to the performance of those procedures. A hysterectomy is proposed for the purpose of preventing pregnancy and menstruation with its psychological and behavioural consequences; an ovariectomy is proposed in order to stabilise hormonal fluxes with the aim of helping to eliminate consequential stress and behavioural responses. While the term "sterilisation" is used throughout this judgment, it must be understood that what the Court is concerned with are the two procedures proposed for Marion. The term is used as a shorthand for these procedures in the particular circumstances unless the context indicates that sterilisation in a different sense or in different circumstances is intended.

The question whether these operations are in Marion's best interests is not before us. That inquiry continues before the Family Court. This Court heard an appeal from the answers given by the Full Court of the Family Court to a case stated to the Full Court by Nicholson CJ on 28 May 1990. As amended, the questions stated were as follows:

"(1) Can the Applicants as joint guardians of the child (Marion) lawfully authorise the carrying out in the Northern Territory, of a sterilisation procedure upon the said child without an order of a Court?
(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?

(3) Which (if any) of the steps referred to in (a), (b) or (c) of question 2 is required by law?"

The questions were answered as follows:

Nicholson CJ [F2] :

"(1) No.
(2) (a) Yes.
(b) No.
(c) No.
(3) The step required in question (2)(a) is required by law to enable the sterilisation operation to be lawfully performed."

Strauss J. [F3] :

"(1) Yes. However, the sanction of the Family Court should be obtained before the operation is carried out. It follows that questions 2(a), (b) and (c) do not arise."

McCall J. [F4] :

"(1) Yes.
(2) If an application is brought by parents as in this case, the court has jurisdiction to make an order in terms of question 2(a).
(3) None."

Jurisdiction

There is an initial question as to whether the Constitution confers jurisdiction on the High Court to hear and determine an appeal from answers given to a case stated in a court below. That question, which has been the subject of earlier decisions of the Court, is now effectively answered in the affirmative by the decision in Mellifont v. A-G. (Qld) [F5] . The Court has jurisdiction to dispose of the present appeal.

The issues

The appellant, the Secretary of the Northern Territory Department of Health and Community Services, supported by the Attorney-General of the Commonwealth as intervener, argued that the guardian of a child has no power to authorise the sterilisation of a child and that application to a court for authorisation of such an operation is mandatory. The Family Court, it was said, has jurisdiction to authorise sterilisation of a child. The respondents, Marion's parents (who are also her joint guardians and custodians), argued that the decision to sterilise a child is not significantly different from other major decisions that parents and guardians have to make for children and that the involvement of the Family Court is optional and of a "supervisory nature" only. Their argument was that, provided such a procedure is in the best interests of the child, parents as guardians can give lawful consent to a sterilisation on behalf of a mentally incompetent child. In anything but a "clear case", the respondents said, court involvement is desirable and they agreed with the appellant that the Family Court has jurisdiction to make orders with respect to sterilisation.

The Human Rights and Equal Opportunity Commission ("the Human Rights Commission") intervened in these proceedings pursuant to s 11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) which provides for such intervention, with leave of the court, in "proceedings that involve human rights issues". The Commission argued that an invasive surgical procedure which results in the removal of the healthy reproductive organs of a young woman, incapable of giving her own consent because of intellectual disability and minority, cannot be carried out lawfully without the authority of the appropriate judicial body. This requirement, the Commission said, represents a proper exercise of the parens patriae or statutory welfare jurisdiction of the Family Court and as such is sufficient safeguard of the rights of mentally retarded and disabled persons recognised in the international Conventions and Declarations incorporated in schedules to the Human Rights and Equal Opportunity Commission Act.

Can parents, as guardians, authorise the sterilisation of their child?

There is no decision of this Court answering the question whether a parent as guardian can authorise the sterilisation of a person who is disabled by age and mental incapacity from giving consent. And, apart from New South Wales and South Australia [F6] ., no State or Territory has enacted legislation to deal with these circumstances. It is necessary therefore to consider the common law and statutory criminal law applicable in the Northern Territory to determine the principles to be applied in the present case. Two major issues are involved in the first question in the case stated. The first is the threshold question of consent; whether a child, intellectually disabled or not, is capable, in law or in fact, of consenting to medical treatment on his or her own behalf. The second arises where a child is incapable of consenting. That issue is whether sterilisation is, in any event, outside the scope of a parent to consent to on behalf of his or her child. In considering these two issues this judgment looks first at the general rules of assault and of consent, then at parental power to consent to medical treatment on behalf of a child and its corollary, the capacity of a child to consent to his or her own treatment. Finally, the question whether sterilisation is, by its nature, a special case is considered.

Assault, consent, medical treatment

In a case such as the present one, it is primarily the prospect of surgical intervention which attracts the interest of the law. This is because the law treats as unlawful, both criminally and civilly, conduct which constitutes an assault on or a trespass to the person. Therefore it is the legality of the specific medical treatment amounting to a hysterectomy and ovariectomy (or, it may be, tubal ligation or vasectomy) which must be the focus of inquiry. However, to characterise intervention comprising sterilisation as "medical treatment" is already to make assumptions and to narrow the inquiry, perhaps inappropriately. As will become clear, it is the very fact that sterilisation implies more than medical, or surgical, treatment that is crucial to the central issue in this appeal.

The Criminal Code Act 1983 (NT) ("the Code") provides that an act is unlawful if it is done "without authorization, justification or excuse" [F7] .. Section 26 of the Code provides:

"(1) An act, omission or event is authorized if it is done, made or caused -

(a)
in the exercise of a right granted or recognized by law;
(b)
...
(c)
...; or
(d)
subject to subsection (3), pursuant to authority, permission or licence lawfully granted."

"Assault" is defined in s 187 of the Code to mean:

"(a) the direct or indirect application of force to a person without his consent ...; or
(b) the attempted or threatened application of such force ... other than the application of force -
(c) ... when giving any medical treatment or first aid reasonably needed by the person to whom it is given ..."

Section 188 of the Code makes an unlawful assault an offence. A person who unlawfully causes grievous harm to another is guilty of a crime [F8] .

The corollary of these provisions, which embody the notion that, prima facie, any physical contact or threat of it is unlawful, is a right in each person to bodily integrity. That is to say, the right in an individual to choose what occurs with respect to his or her own person. In his Commentaries, Blackstone wrote [F9] :

"(T)he law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner".

Consent ordinarily has the effect of transforming what would otherwise be unlawful into accepted, and therefore acceptable, contact. Consensual contact does not, ordinarily, amount to assault. However, there are exceptions to the requirement for, and the neutralising effect of, consent and therefore qualifications to the very broadly stated principle of bodily inviolability. In some instances consent is insufficient to make application of force to another person lawful and sometimes consent is not needed to make force lawful. For example, a person in the Northern Territory cannot render a killing lawful by consenting to be killed [F10] . and at common law a comparable qualification exists with respect to assault in some circumstances. A.-G. Reference (No 6 of 1980) [F11] held that those entering into a consensual fight were guilty of assault if they intended to inflict bodily harm [F12] . The rationale for this exception appears to rest in the idea that some harms involve public, not just personal, interests [F13] Moreover, the absence of consent is irrelevant in a lawful arrest or in circumstances which amount to self-defence. A further exception of this kind is reflected in Collins v. Wilcock, where it was said [F14] that in respect of physical contact arising from the exigencies of everyday life - jostling in a street, social contact at parties and the like - there is an implied consent "by all who move in society and so expose themselves to the risk of bodily contact", or that such encounters fall "within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life."

Medical treatment of adults with full mental capacity does not come within any of the exceptions mentioned [F15] . The factor necessary to render such treatment lawful when it would otherwise be an assault is, therefore, consent. The Code impliedly treats non-consensual medical treatment as an assault by making it a form of "grievous harm" which may be consented to [F16] . This, again, reflects the principle of personal inviolability echoed in the well-known words of Cardozo J. in Schloendorff v. Society of New York Hospital [F17] :

"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault".

Sterilisation comes within the category of medical treatment to which a legally competent person can consent. That is to say, Denning L.J.'s minority view in Bravery v. Bravery that sterilisation was in itself an unlawful act to which consent gave no defence has not been followed [F18] But what of medical treatment of those who, because of incapacity, cannot consent? What, besides personal consent, can render surgical intervention lawful?

The reasons for, and circumstances of, incapacity differ greatly. An adult who is normally of full mental capacity may be temporarily unable to consent due to, for example, an accident resulting in unconsciousness. Or a child's parents may be temporarily unavailable to give or withhold consent to emergency medical treatment of their child. In the Northern Territory these circumstances are dealt with by the Emergency Medical Operations Act 1973 (NT). That Act provides [F19] that a medical practitioner may perform an operation on a patient without consent (or without consent of the parents of a child) where the purpose of the operation is to prevent the patient from dying or suffering a serious permanent disability and it is impracticable to delay the operation in order to seek consent. On the other hand, an adult may suffer a permanent incapacity to consent to major medical treatment, including sterilisation, due to intellectual disability. In the Northern Territory this circumstance is met by the Adult Guardianship Act 1988 (NT). Sections 3 and 21 of that Act provide that the consent of the Local Court is required for such treatment. Neither of the Northern Territory Acts mentioned is, of course, applicable in the present circumstances and neither elucidates any principle upon which treatment is justified which may be relevant in considering the analogous situation of a permanently incapacitated child. In the case of medical treatment of those who cannot consent because of incapacity due to minority, the automatic reference point is the minor's parent or other guardian. Parental consent, when effective, is itself an exception to the need for personal consent to medical treatment. Powers of parents, as guardians, to consent to medical treatment

The sources of parental power

The sources of parental power, including the power to consent to medical treatment of the child, where the parent is also a guardian of a child of a marriage, are the Family Law Act 1975 (Cth), the common law, and the Code. Subject to the order of a competent court, each parent of a child under 18 years is a guardian of the child. [F20] . Section 63E(1) and (2) of the Family Law Act provides:

"(1) 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.

(2) A person who has or is granted custody of a child under this Act has:

(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(1) operates to identify the guardian, as against the world, as the person with the responsibility defined; it delineates the rights and duties of the guardian and the custodian of a child if they are different persons; and, possibly, the sub-section functions to impose the relevant duty on the person who is the guardian. It also vests in the guardian rights and duties which are, ordinarily, the incidents of parenthood at common law and impliedly preserves any specific rights and duties conferred by the general law and legislation, other than the Family Law Act, on a guardian. This preservation is achieved by conferring on the guardian "all the powers, rights and duties that are, apart from this Act, vested by law or custom in the guardian" (emphasis added). The phrase "long-term welfare" in s 63E(1) does not of itself indicate the content of a guardian's duty. Nicholson CJ thought [F21] that does no more than confer upon the guardians of the child, the normal incidents which the common law confers upon a guardian". On the other hand, McCall J. was of the view that the amendments to the Family Law Act in 1983, which included the predecessor of introduced significant changes" [F22] and "were deliberately intended to entrust to parents and guardians the responsibility for medical treatment other than of an immediate or urgent nature" [F23] But, his Honour added, the scheme of the Act was not to leave such decisions unsupervised, hence the power in s 64(1)(c) to make orders with respect to the welfare of a child and the power in s 70C(1)(a), introduced among the amendments of 1987, to grant injunctions for the personal protection of the child.

With respect to McCall J., we think that his Honour reads too much into the relevant provisions, at least in so far as he treats them as entrusting to parents and guardians responsibility for the sterilisation of a child suffering mental incapacity. We shall explain later in these reasons why we are of this view. Certainly there is no express power to authorise sterilisation conferred by the Family Law Act.

The scope of parental power

The two major issues referred to at the beginning of this judgment arise more specifically at this point in an examination of parental consent as an exception to the need for personal consent to medical treatment. As noted earlier, the first issue relates to the important threshold question of consent: whether a minor with an intellectual disability is or will ever be capable of giving or refusing informed consent to sterilisation on his or her own behalf. Where the answer to that question is negative the second question arises. Is sterilisation, in any case, in a special category which falls outside the scope of a parent to consent to treatment? Is such a procedure a kind of intervention which is, as a general rule, excluded from the scope of parental power?

By virtue of legislation, the age of majority in all States and Territories of Australia is 18 years [F24] . Every person below that age is, therefore, a minor and under the Family Law Act the powers of a guardian, generally speaking, cease at that age [F25] In some States a minor's capacity to give informed consent to medical treatment is regulated by statute [F26] but in the Northern Territory the common law still applies. The common law in Australia has been uncertain as to whether minors under 16 can consent to medical treatment in any circumstances [F27] . However, the recent House of Lords decision in Gillick v. West Norfolk AHA [F28] is of persuasive authority. The proposition endorsed by the majority in that case was that parental power to consent to medical treatment on behalf of a child diminishes gradually as the child's capacities and maturity grow and that this rate of development depends on the individual child. Lord Scarman said [F29] :

"Parental rights ... do not wholly disappear until the age of majority. ... But the common law has never treated such rights as sovereign or beyond review and control. Nor has our law ever treated the child as other than a person with capacities and rights recognised by law. The principle of the law ... is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child."

A minor is, according to this principle, capable of giving informed consent when he or she "achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed" [F30] .

This approach, though lacking the certainty of a fixed age rule, accords with experience and with psychology [F31] . It should be followed in this country as part of the common law [F32] .

Of course, the fact that a child suffers an intellectual disability makes consideration of the capacity to consent a different matter. The age at which intellectually disabled children can consent will be higher than for children within the normal range of abilities. However, terms such as "mental disability", "intellectual handicap" or "retardation" lack precision. There is no essential cause of disability; those who come within these categories form a heterogeneous group. And since most intellectually disabled people are borderline to mildly disabled [F33] , there is no reason to assume that all disabled children are incapable of giving consent to treatment. In the case of children with intellectual disabilities, the situation is further complicated by the need for future, as well as present, assessment. The Committee on Rights of Persons with Handicaps (South Australia) agreed [F34] :

"There is nothing inherent in mental handicap ... that prevents a person from providing competent consent to a sterilization."

Any rule which purports to apply to the group of intellectually disabled children therefore involves sweeping generalisation.

It may also be said, in this context, that not only are there widely varying kinds and consequences of intellectual disability but such handicaps, possibly more so than other forms of disability, are often surrounded by misconceptions on the part of others in society, misconceptions often involving an underestimation of a person's ability [F35] . This applies particularly with respect to sexuality and sexual identity which are central to the question here. Although complex for everyone, these matters are especially complex for disabled persons, sometimes because of ignorance and misconceptions on the part of those on whose care disabled persons find themselves dependent.

The Committee on Rights of Persons with Handicaps (South Australia) said [F36] :

"(T)here are no formal assessment procedures which reliably predict the future capabilities of intellectually handicapped children, and (sterilisation) appears to be often decided upon through fears of what might be, rather than by reference to clear definite criteria."

To conclude this aspect, it is important to stress that it cannot be presumed that an intellectually disabled child is, by virtue of his or her disability, incapable of giving consent to treatment. The capacity of a child to give informed consent to medical treatment depends on the rate of development of each individual. And if Gillick is taken to reflect the common law in Australia, as we think it now does, these propositions are true as a matter of law in the Northern Territory.

Is sterilisation a special case?

If it is clear, as it is in the present case, that the particular child is intellectually disabled to such an extent as to be incapable of giving valid informed consent to medical treatment, the second question arises; namely, whether there are kinds of intervention which are, as a general rule, excluded from the scope of parental power to consent to; specifically, whether sterilisation is such a kind of intervention. Thus the question concerns the limits of parental power other than limits arising from the child's capacity to give personal consent.

Where their child is incapable of giving valid consent to medical treatment, parents, as guardians, may in a wide range of circumstances consent to medical treatment of their child who is a minor. This is clear in the common law and, by implication, in the Emergency Medical Operations Act which creates an exception to the need for parental consent in the case of emergency treatment. It is also implicit in the duty to provide the necessaries of life imposed by ss 149 and 183 of the Code. Where this parental power exists, two principles are involved. First, the subjective consent of a parent, in the sense of a parent speaking for the child, is, ordinarily, indispensable. That authority emanates from a caring relationship. Secondly, the overriding criterion to be applied in the exercise of parental authority on behalf of a child is the welfare of the child objectively assessed. That these two principles become, for all practical purposes, one is a recognition that ordinarily a parent of a child who is not capable of giving informed consent is in the best position to act in the best interests of the child. Implicit in parental consent is understood to be the determination of what is best for the welfare of the child.

In arguing that there are kinds of intervention which are excluded from the scope of parental power, the Commonwealth submitted that the power does not extend to, for example, the right to have a child's foot cut off so that he or she could earn money begging, and it is clear that a parent has no right to take the life of a child. But these examples may be met with the proposition that such things are forbidden because it is inconceivable that they are in the best interests of the child. Even if, theoretically, begging could constitute a financially rewarding occupation, there is a presumption that other interests of the child must prevail. Thus, the overriding criterion of the child's best interests is itself a limit on parental power. None of the parties argued, however, that sterilisation could never be said to be in the best interests of a child with the result that it could never be authorised. On the contrary, the question whether parental power is limited only arises because the procedure may be authorised. But, the question whether it is in the best interests of the child and, thus, should be authorised is not susceptible of easy answer as in the case of an amputation on other than medical grounds. And the circumstances in which it arises may result from or involve an imperfect understanding of the issues or an incorrect assessment of the situation [F37] .

It is useful, at this point, to look at how sterilisation has been treated in this regard in relevant cases. That is to say whether, and on what bases, sterilisation has been treated as a special case, outside the ordinary scope of parental power to consent to medical treatment. Australia

There are four relevant Australian decisions concerning sterilisation, apart from the Family Court's decision in the present case. They are: Re a Teenager [F38] ; Re Jane; Re Elizabeth [F39] ; and Attorney-General (Qld) v. Parents ("In re S") [F40] All were first instance decisions, all involved minors, and the result of each decision was to permit the sterilisation of the girl or young woman involved. With respect to the question of mandatory court involvement, however, authority is evenly divided. Re a Teenager and In re S held that it was unnecessary for parents, as guardians, to seek approval from a court to authorise sterilisation; further, that parental consent was sufficient. Re Jane and Re Elizabeth held that a court's consent was required.

In Re a Teenager an application was made by an intellectually disabled 14 year old girl, through her next friend, to restrain her parents from permitting a planned hysterectomy on her to proceed. She was assessed as having the mental ability of a child of about two and a half years. A member of staff of a government centre, on hearing about the operation, contacted a solicitor. The solicitor, acting bona fide, informed the doctor who intended to carry out the operation that the procedure was unlawful without a court order. In dismissing the application, Cook J. held that it is within the scope of the powers of parents to authorise the sterilisation of their child. He said [F41] :

"So far as the Family Law Act is concerned, prima facie thoughtful, caring and loving parents, acting in concert, aided by appropriate medical advice have a right and indeed a duty to make decisions as to medical treatment including major operations in respect of the children of their marriage, whether such children are normal or are mentally handicapped. There must be some clear and obvious factors, over and above those usually attendant on such operative treatment, before any form of interference by the Court at the behest of the child or any other person, is justified."

Sterilisation in itself, in his Honour's opinion, involved no such "clear and obvious factors".

His Honour's conclusion appears to have been based on the principle that in the "intimate environment" of family life "parents are given a unique opportunity to become aware of the special needs" [F42] of their child and that, as against this experience and proximity, a court has no special expertise. Moreover, taking such a decision "out of the hands of thoughtful, caring and loving parents" [F43] would risk the denial of the protection granted families by Family Law Act which provides that the Court shall have regard to "the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children".

In Re Jane, the Acting Public Advocate of Victoria applied to the Family Court to be appointed the next friend of Jane and, on Jane's behalf, sought an injunction restraining her parents from permitting a hysterectomy to be performed on her without the approval of the Family Court. The Human Rights Commission intervened. Jane was 17 years old and was assessed to have the mental ability of a child of two. The purpose of the proposed operation was to prevent menstruation and the risk of pregnancy. In deciding that only a court, as distinct from the guardians of a child, can give lawful consent to a hysterectomy, Nicholson CJ appears to have considered the fundamental, independent rights of a child involved in a sterilisation decision to be at too great a risk without the safeguard of a court's participation. His conclusion also rested on the characterisation of the sterilisation as "non-therapeutic" [F44] . The Chief Justice identified two rights recognised by the common law and which might be said to be affected by such a decision: the fundamental principle that every person's body is "inviolate" [F45] and the right, or liberty, to reproduce or to choose not to do so [F46] It was argued before his Honour that if the Family Court has the power to consent to this kind of operation under its parens patriae jurisdiction, then parents have such power also because in the exercise of its parens patriae jurisdiction the Court simply stands in the place of the parents. Nicholson CJ relied on the judgment of Sachs L.J. in Hewer v. Bryant [F47] to conclude that the powers of the Crown as the historic parens patriae were more extensive than those of a parent. He then went on to consider the consequences of the court's consent being held to be unnecessary [F48] :

"The consequences of a finding that the court's consent is unnecessary are far reaching both for parents and for children. For example, such a principle might be used to justify parental consent to the surgical removal of a girl's clitoris for religious or quasi cultural reasons, or the sterilisation of a perfectly healthy girl for misguided, albeit sincere, reasons. Other possibilities might include parental consent to the donation of healthy organs such as a kidney from one sibling to another."

And his Honour did not accept the unqualified trust in the medical profession expressed by Cook J. in Re a Teenager [F49] , saying [F50] :

"Like all professions, the medical profession has members who are not prepared to live up to its professional standards of ethics ... Further, it is also possible that members of that profession may form sincere but misguided views about the appropriate steps to be taken."

In defining the circumstances in which a court's consent is required for an operative procedure to be performed on a minor or an intellectually retarded person, Nicholson CJ employed, though somewhat tentatively, the distinction between "therapeutic" and "non-therapeutic" operations [F51] , where the term "therapeutic" means treatment of some malfunction or disease. This criterion was used as a test in the Canadian case of E (Mrs) v. Eve ("Re Eve") [F52] , but was criticised in In re B (A Minor) [F53] by the House of Lords as a test for determining the scope of the parens patriae jurisdiction. In the end Nicholson CJ found both the distinction between therapeutic and non-therapeutic treatment and the idea of a basic human right to be determinative. He concluded that consent to a medical procedure which involves "interference with a basic human right such as a person's right to procreate" and which has as "the principal or a major aim" a non-therapeutic purpose was outside the scope of parental power [F54] .

Ross-Jones J. in Re Elizabeth agreed with Nicholson CJ, and for the same reasons, that the approval of the Family Court is required. His Honour also relied on the judgment of Lord Donaldson M.R. in the Court of Appeal's decision in In re F in saying [F55] that a sterilisation operation is "irreversible and is of an emotive, sensitive and potentially controversial character". But his Honour found it unnecessary to examine these factors any further or explain why they should mean that court involvement was necessary.

In In re S, Simpson J. relied on the conclusion of the House of Lords in In re F, that there is no necessity for the consent of a court to be obtained for medical procedures to be performed on an adult person under a disability, to come to the same conclusion with respect to a minor.

In the case now before the Court Nicholson CJ adhered to the conclusion he had reached in Re Jane, saying [F56] :

"I think it can be said of sterilisation that it does stand in the category of procedures that require the authorisation of a court for all of the reasons contained in the various passages from the speeches of the House of Lords in Re B and Re F, which I have cited, to which further support is given by the American and Canadian authorities."

He drew further support from the Human Rights and Equal Opportunity Commission Act. It is necessary to turn now to some of the decisions upon which Nicholson CJ relied and later to the Family Law Act.

New Zealand

In Re X [F57] Hillyer J., in the exercise of the parens patriae jurisdiction, made an order consenting to a child of 15 years, with a mental age of three months, undergoing a hysterectomy operation to prevent menstruation, which, according to the evidence, would have had extremely harmful consequences for the child. The application was made by the parents of the child who, by virtue of the relevant New Zealand legislation, had authority to consent to such an operation. Hillyer J. considered that doctors undertaking an operation which would result in sterilisation were obliged to satisfy themselves that the parental consent was an informed one and that the operation would be in the best interests of the child. His Honour held that, although this would in many cases call for an exercise of the court's jurisdiction, there would be obvious cases in which the existence of a consensus of opinion would make it unnecessary to approach the courts and for the parents to incur the expense, inconvenience and anxiety which such an approach would entail.

England

In In re B, a case concerning the sterilisation of a 17 year old girl assessed to have the understanding of a normal six year old, the House of Lords endorsed [F58] the reasoning of Heilbron J. in In re D, a case decided some 12 years earlier. In the earlier case Heilbron J. said [F59] :

"The type of operation proposed is one which involves the deprivation of a basic human right, namely, the right of a woman to reproduce, and, therefore, it would be, if performed on a woman for non-therapeutic reasons and without her consent, a violation of such right".

Much of the discussion by the House of Lords in In re B about this "basic human right" was, however, in the context of the main question before the Court - whether or not sterilisation of a mentally disabled person could be authorised by the Court in any circumstances - and was in response to the issues raised by the decision of the Canadian Supreme Court in Re Eve that such a procedure "should never be authorized for non-therapeutic purposes under the parens patriae jurisdiction" [F60] . The House of Lords found that the basic human right to reproduce did not preclude a sterilisation of a minor in appropriate circumstances but only Lord Templeman commented on the issue of mandatory court authorisation. He concluded [F61] that consent to sterilisation of a minor was outside the scope of parental power and "should only be carried out with the leave of a High Court judge". Again, since the major issue before the House of Lords was the question whether any person or body could consent to sterilisation on behalf of a disabled minor, his Lordship did not elaborate his view that court authorisation is necessary. He said [F62] that "(n)o-one has suggested a more satisfactory ... method (than proceedings before a judicial tribunal) of reaching a decision which vitally concerns an individual but also involves principles of law, ethics and medical practice", and he referred again to "the fundamental right of a girl to bear a child".

Between publication of the judgments in Re Elizabeth and In re S in Australia, the judgment of the House of Lords in In re F was delivered. The House of Lords there held that a court's consent to the sterilisation of a 36 year old woman was unnecessary [F63] and that the procedure was lawful if it was in the best interests of the woman [F64] . However, as Nicholson CJ said in the present case [F65] , the decision of the House of Lords is consistent with the proposition that, in the case of a minor, a court's consent is required. Furthermore, the House of Lords' decision was influenced by the particular jurisdictional framework involved. A lacuna in jurisdiction resulted from the revocation by Royal Warrant in 1960 of the parens patriae jurisdiction of the High Court with respect to adults with mental disability. Therefore, in the circumstances, the Court had no jurisdiction to authorise sterilisation. Even so, Lord Griffiths held [F66] that it should, on the grounds of "public interest", be the law that the consent of the High Court is necessary. Furthermore, each of their Lordships urged the wisdom of making an application to the Court [F67] , though such an application was not mandatory. In this regard Lord Brandon elaborated the special features of the procedure which make it "highly desirable" that the Court be involved [F68] :

"These features are: first, the operation will in most cases be irreversible; secondly, by reason of the general irreversibility of the operation, the almost certain result of it will be to deprive the woman concerned of what is widely, and as I think rightly, regarded as one of the fundamental rights of a woman, namely, the right to bear children; thirdly, the deprivation of that right gives rise to moral and emotional considerations to which many people attach great importance; fourthly, if the question whether the operation is in the best interests of the woman is left to be decided without the involvement of the court, there may be a greater risk of it being decided wrongly, or at least of it being thought to have been decided wrongly; fifthly, if there is no involvement of the court, there is a risk of the operation being carried out for improper reasons or with improper motives; and, sixthly, involvement of the court in the decision to operate, if that is the decision reached, should serve to protect the doctor or doctors who perform the operation, and any others who may be concerned in it, from subsequent adverse criticisms or claims."

United States

The constitutional bases mentioned at times in the United States cases differ from our own, as does the social and legal history of that country, particularly with regard to the widespread acceptance in North America during the early part of this century of the theory of eugenics [F69] . Nevertheless, much of what is said in those cases derives from and discusses common law principles; given the number of cases concerning sterilisation in those jurisdictions, some reference to them is warranted.

The case of AL v. GRH [F70] is directly in point. AL filed a complaint seeking a declaration of her right under the common law attributes of the parent-child relationship to have her son, GRH, sterilised. The boy, aged 15, had suffered brain damage as the result of a car accident during his childhood. The Court of Appeals of Indiana said [F71] :

"(T)he facts do not bring the case within the framework of those decisions holding ... that the parents may consent on behalf of the child to medical services necessary for the child ...
(T)he common law does not invest parents with such power over their children even though they sincerely believe the child's adulthood would benefit therefrom".

In Stump v. Sparkman [F72] . the Supreme Court of the United States held that a judge who had authorised, after an ex parte hearing, a sterilisation of a minor on the application of the minor's mother, had jurisdiction to do so under an Indiana statute conferring general jurisdiction on the Court. There, a "somewhat retarded" 15 year old girl was sterilised, having been told she was to have her appendix removed. Two years later, when she was married and unable to become pregnant, she was told that she had been sterilised. The Supreme Court referred without disapproval to the opinion of the court below with respect to parental powers of consent, which was in accordance with the decision in AL v. GRH just mentioned [F73] .

One of the leading United States cases in this context is that of In re Grady [F74] in which the Supreme Court of New Jersey held that the Court could, within its parens patriae jurisdiction, decide whether to authorise sterilisation of a legally incompetent person and that the decision should, ultimately, be made by a court, not by the guardian of the person concerned. The Court began with the idea of a fundamental right to procreate. It said [F75] :

"Sterilization may be said to destroy an important part of a person's social and biological identity - the ability to reproduce. It affects not only the health and welfare of the individual but the well-being of all society. Any legal discussion of sterilization must begin with an acknowledgment that the right to procreate is 'fundamental to the very existence and survival of the race' [F76] ... This right is 'a basic liberty' of which the individual is 'forever deprived' through unwanted sterilisation."

The Court then examined the constitutional right of privacy which involved the right to choose among procreation, sterilisation and other methods of contraception. This was based on United States constitutional provisions but, as Nicholson CJ said in the present case [F77] , that basic right has been held to be allied with, or to have been derived from, the common law principle of bodily inviolability as well as from written constitutional guarantees.

According to the Supreme Court of New Jersey, the right to procreate and the right of privacy could only be protected adequately if the decision to sterilise was the subject of independent, judicial decision-making [F78] :

"We need not determine here the full range of persons who may assert such a right on behalf of the incompetent. The parents are unquestionably eligible to do so. The question of who besides the parents has standing to represent the purported interests of the incompetent can await future determination. Nevertheless, we believe that an appropriate court must make the final determination whether consent to sterilization should be given on behalf of an incompetent individual. It must be the court's judgment, and not just the parents' good faith decision, that substitutes for the incompetent's consent."

Thus, the two fundamental rights involved in the decision to sterilise required, in the Court's opinion, reference to the court to ensure sufficient protection against their abuse. That is to say, the nature of the rights themselves distinguished this decision from others made by parents in the ordinary course of caring for their children.

Other United States cases which have held that the court's consent is required on the basis that the operation interferes with the fundamental right to procreate include Ruby v. Massey [F79] . Matter of Guardianship of Hayes ( [F80] and Matter of Moe [F81] .

Summary of earlier decisions

In summary, Australian authority prior to the present case is evenly divided on the question whether court authorisation is a mandatory requirement. The New Zealand decision in Re X depended partly on legislation which enabled parents of an intellectually handicapped child to consent to an operation resulting in sterilisation. Neither of the English cases is directly in point, but in In re B Lord Templeman expressed the opinion that court authorisation was required. In re F concerned an adult, not a minor. It held that court authorisation was not required though this was in the context of the court having no jurisdiction to order a sterilisation. In Re Eve the Canadian Supreme Court held that non-therapeutic sterilisation can never safely be said to be in the best interests of a person and so can never be authorised by a court under the parens patriae jurisdiction. There is, on the other hand, strong United States authority to the effect that sterilisation for contraceptive purposes is outside the scope of parental power but comes within the scope of the court's parens patriae jurisdiction.

In the cases reviewed, the bases which emerge for isolating the decision to sterilise a child as a special case requiring authorisation from a source other than the child's parents appear to be: first, the concept of a fundamental right to procreate; secondly, in some cases, a similarly fundamental right to bodily inviolability or its equivalent; thirdly, the gravity of the procedure and its ethical, social and personal consequences, though these consequences are not examined in any detail. Can parents, as guardians, consent to sterilisation?

Conclusion

There are, in our opinion, features of a sterilisation procedure or, more accurately, factors involved in a decision to authorise sterilisation of another person which indicate that, in order to ensure the best protection of the interests of a child, such a decision should not come within the ordinary scope of parental power to consent to medical treatment. Court authorisation is necessary and is, in essence, a procedural safeguard. Our reasons for arriving at this conclusion, however, do not correspond precisely with any of the judgments considered. We shall, therefore, give our reasons. But first it is necessary to make clear that, in speaking of sterilisation in this context, we are not referring to sterilisation which is a by-product of surgery appropriately carried out to treat some malfunction or disease. We hesitate to use the expressions "therapeutic" and "non-therapeutic", because of their uncertainty. But it is necessary to make the distinction, however unclear the dividing line may be.

As a starting point, sterilisation requires invasive, irreversible and major surgery. But so do, for example, an appendectomy and some cosmetic surgery, both of which, in our opinion, come within the ordinary scope of a parent to consent to. However, other factors exist which have the combined effect of marking out the decision to authorise sterilisation as a special case. Court authorisation is required, first, because of the significant risk of making the wrong decision, either as to a child's present or future capacity to consent or about what are the best interests of a child who cannot consent, and secondly, because the consequences of a wrong decision are particularly grave.

The factors which contribute to the significant risk of a wrong decision being made are:

(i)
The complexity of the question of consent. Although there are some cases, of which the facts in Re X are an example, in which the parents can give an informed consent to an operation of sterilisation on an intellectually disabled child and in which that operation is clearly for the benefit of the child, there is no unproblematic view of what constitutes informed consent [F82] . And, even given a settled psychological or legal rule, its application in many cases is fraught with difficulty. The fact that a child is disabled does not of itself mean that he or she cannot give informed consent or, indeed, make a meaningful refusal. And there is no reason to assume that those attempting to determine the capacity of an intellectually disabled child, including doctors, may not be affected by commonly held misconceptions about the abilities of those with intellectual disabilities [F83] . There is no doubt that some sterilisation operations have been performed too readily and that the capacity of a child to give consent (and, later, to care for a child) has been wrongly assessed both here and overseas, historically and at the present time [F84] .
(ii)
The medical profession very often plays a central role in the decision to sterilise as well as in the procedure itself. Indeed the question has been "medicalised" to a great degree [F85] . Two concerns emerge from this. It is hard to share the view of Cook J. in Re a Teenager [F86] that absolute faith in the integrity of all medical practitioners is warranted. We agree with Nicholson CJ in Re Jane [F87] that, as with all professions, there are those who act with impropriety as well as those who act bona fide but within a limited frame of reference. And the situation with which they are concerned is one in which incorrect assessments may be made [F88] . The second concern is that the decision to sterilise, at least where it is to be carried out for contraceptive purposes, and especially now when technology and expertise make the procedure relatively safe, is not merely a medical issue. This is also reflected in the concern raised in several of the cases reviewed, that the consequences of sterilisation are not merely biological but also social and psychological. The requirement of a court authorisation ensures a hearing from those experienced in different ways in the care of those with intellectual disability and from those with experience of the long term social and psychological effects of sterilisation.
(iii)
The decision by a parent that an intellectually disabled child be sterilised may involve not only the interests of the child, but also the independent and possibly conflicting (though legitimate) interests of the parents and other family members [F89] . There is no doubt that caring for a seriously handicapped child adds a significant burden to the ordinarily demanding task of caring for children [F90] Subject to the overriding criterion of the child's welfare, the interests of other family members, particularly primary care-givers, are relevant to a court's decision whether to authorise sterilisation. However, court involvement ensures, in the case of conflict, that the child's interests prevail.

The gravity of the consequences of wrongly authorising a sterilisation flows both from the resulting inability to reproduce and from the fact of being acted upon contrary to one's wishes or best interests. The fact of violation is likely to have social and psychological implications concerning the person's sense of identity, social place and self-esteem. As the Court said in In re Grady [F91] , a decision to sterilise involves serious questions of a person's "social and biological identity". As with anyone, reactions to sterilisation vary among those with intellectual disabilities but it has been said [F92] that "sterilized mentally retarded persons tend to perceive sterilization as a symbol of reduced or degraded status". Another study found [F93] that:

"Existential anxieties commonly associated with mental retardation are likely to be seriously reinforced by coercive sterilization of those who have had no children. Common sources of these anxieties include low self-esteem, feelings of helplessness, and need to avoid failure, loneliness, concern over body integrity and the threat of death."

The far-reaching consequences of a general rule of law allowing guardians to consent to all kinds of medical treatment, as well as the consequences of a wrong decision in any particular case, are also relevant. As Nicholson CJ pointed out in Re Jane in the passage quoted earlier [F94] , such a rule may be used to justify other procedures such as a clitoridectomy or the removal of a healthy organ for transplant to another child.

For the above reasons, which look to the risks involved in the decision, particularly in relation to the threshold question of competence and in relation to the consequences of a wrong assessment, our conclusion is that the decision to sterilise a minor in circumstances such as the present falls outside the ordinary scope of parental powers and therefore outside the scope of the powers, rights and duties of a guardian under Family Law Act. This is not a case where sterilisation is an incidental result of surgery performed to cure a disease or correct some malfunction. Court authorisation in the present case is required. Where profound permanent incapacity is indisputable, where all psychological and social implications have in fact been canvassed by a variety of care-givers and where the child's guardians are, in fact, only considering the interests of the child or where their own interests do not conflict with those of the child, court authorisation will ordinarily reproduce the wishes of the guardian. But it is not possible to formulate a rule which distinguishes these cases. Given the widely varying circumstances, it is impossible to apply a single rule to determine what are, in the respondents' words, the "clear cases".

Children with intellectual disabilities are particularly vulnerable, both because of their minority and their disability, and we agree with Nicholson CJ [F95] that there is less likelihood of (intentional or unintentional) abuse of the rights of children if an application to a court is mandatory, than if the decision in all cases could be made by a guardian alone. In saying this we acknowledge that it is too costly for most parents to fund court proceedings, that delay is likely to cause painful inconvenience and that the strictly adversarial process of the court is very often unsuitable for arriving at this kind of decision. These are clear indications of the need for legislative reform, since a more appropriate process for decision-making can only be introduced in that way. The burden of the cost of proceedings for parents would in the meantime, of course, be alleviated by the application being made by a relevant public body pursuant to Family Law Act [F96] .

One more thing should be said about the basis upon which we have concluded that sterilisation is a special case with respect to parental powers. As we have indicated, the conclusion relies on a fundamental right to personal inviolability existing in the common law, a right which underscores the principles of assault, both criminal and civil, as well as on the practical exigencies accompanying this kind of decision which have been discussed. Our conclusion does not, however, rely on a finding which underpins many of the judgments discussed; namely, that there exists in the common law a fundamental right to reproduce which is independent of the right to personal inviolability. We leave that question open. It is debatable whether the former is a useful concept, when couched in terms of a basic right, and how fundamental such a right can be said to be [F97] . For example, there cannot be said to be an absolute right in a man to reproduce (except where a woman consents to bear a child), unless it can be contended that the right to bodily integrity yields to the former right, and that cannot be so. That is to say, if there is an absolute right to reproduce, is there a duty to bear children? But if the so-called right to reproduce comprises a right not to be prevented from being biologically capable of reproducing, that is a right to bodily integrity. The same applies, though in a different way, to a woman's "right to reproduce".

Again, if the right is, in fact, a right to do with one's person what one chooses, it is saying no more than that there is a right to bodily and personal integrity. Furthermore, it is quite impossible to spell out all the implications which may flow from saying that there is a right to reproduce, expressed in absolute terms and independent from a right to personal inviolability. We think it is important, in the terms of this judgment, to make it quite clear that it is inviolability that is protected, not more. Does the Family Court have jurisdiction to authorise sterilisation?

Neither the appellant nor the respondents suggested that the Family Court does not have jurisdiction to authorise a sterilisation in appropriate circumstances and when an application is made; their difference was as to the source of jurisdiction and, the question already dealt with, whether that jurisdiction must be invoked.

Despite the effective absence of argument in support of a broad proposition that the Family Court lacks jurisdiction in this matter and despite the fact that it was accepted that in any event the Court had, if not independent jurisdiction, then cross-vested parens patriae jurisdiction as a result of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act (1987) (NT), considerable time was spent in argument on the question whether the Family Court had independently vested "welfare" jurisdiction conferred by the Family Law Act. The issue is of importance, also, in so far as it affects the related question of the impact of an order under the federal jurisdiction of the Family Court on existing State law, particularly criminal law.

In order to determine the Family Court's jurisdiction, it is necessary to examine two major amendments to the Act, one in 1983 and another in 1987. Before the 1983 amendments the Family Court had, by virtue of s 31(1) of the Family Law Act, jurisdiction in matrimonial causes. "Matrimonial cause" was defined in the Act to include:

"(c) proceedings between the parties to a marriage with respect to -

(i)
the maintenance of one of the parties to the marriage; or
(ii)
the custody, guardianship or maintenance of, or access to, a child of the marriage;

...
(cb) proceedings by or on behalf of a child of a marriage against one or both of the parties to the marriage with respect to the maintenance of the child".

custody or guardianship of, or access to, a child of a marriage". There was no independent reference to welfare and it is clear that, as the Family Law Act stood before 1983, there was no general power in the Family Court to make orders relating to the welfare of a child. Orders were confined to those concerning custody, guardianship, or access [F98] .

The amendments to the Family Law Act made in 1983 were the result of recommendations contained in the Watson Committee Report of 1982. Significantly, the Act was amended to enable orders to be made for the protection of the welfare of a child of a marriage [F99] . At the same time the definition of "matrimonial cause" in s 4(1) was amended to include:

"(cf) proceedings between the parties to a marriage with respect to the welfare of a child of the marriage;
(cg) proceedings by or on behalf of a child of a marriage against one or both of the parties to the marriage with respect to the welfare of the child;
(ch) proceedings with respect to the welfare of a child of a marriage, being proceedings to which one party to the marriage is a party ..."

The Attorney-General, in the second reading speech introducing the Family Law Amendment Bill of 1983, said [F100] .:

"The third way in which the Bill will expand the Act's jurisdiction concerning children is to permit proceedings concerning the welfare of a child. These amendments reflect the Government's decision to implement the Watson Committee recommendation that the Family Law Act be amended to enable orders to be made for the protection of the welfare of a child of a marriage, thereby investing courts exercising jurisdiction under the Act with a power similar to the wardship power of the State Supreme Courts. The Joint Select Committee favoured the conferral of a wardship jurisdiction on courts exercising jurisdiction under the Act. The Watson Committee, however, concluded that while the substance of the jurisdiction was highly desirable, the terminology or concept of wardship, which the committee described as 'archaic', ought to be abolished. In accordance with the Watson Committee's views, the Bill does not use the language of wardship but instead provides that proceedings concerning the welfare of a child of a marriage that involve at least one of the parties to the marriage are a matter, indeed an exclusive matter, for the Family Court."

It seems clear that the 1983 amendments were intended to, and did, confer jurisdiction on the Family Court similar to the parens patriae jurisdiction, without the formal incidents of one of the aspects of that jurisdiction, the jurisdiction to make a child a ward of court.

The 1987 amendments effected, among other things, the repeal of pars (cb) to (ch) of the definition of "matrimonial cause", which included the provisions relating to proceedings with respect to the welfare of a child, quoted above. Before the Full Court of the Family Court the Commonwealth argued [F101] that the deletion of these paragraphs from the definition of "matrimonial cause" had the effect of taking from the Family Court the independent head of jurisdiction to make orders with respect to the welfare of a child. That submission was, rightly, not pressed before this Court. The deletion, in 1987, of the paragraphs in the definition of "matrimonial cause" is consistent with an aim of gathering provisions relating to children into one Part of the Act [F102] , which was also effected by the 1987 amendments, and with the further aim of effecting the reference of powers from four States to the Commonwealth in relation to matters concerning ex-nuptial children [F103] . And, at least at the time of these latter amendments, the same legislative scheme applied to orders with respect to child maintenance, in relation to which the Family Court's jurisdiction has not been doubted. Furthermore, if the intention of Parliament was, by the 1987 amendments, to divest the Family Court of this welfare jurisdiction and to revest it in State Supreme Courts, it would have been necessary to express such an intention in clear terms [F104]

As the Family Law Act now stands, s 63(1) confers jurisdiction on the Family Court "in relation to matters arising under this Part". Section 64(1) of the Act provides:

"In proceedings with respect to the custody, guardianship or welfare of, or access to, a child -
...
(c) ... the court may make such order in respect of those matters as it considers proper, including an order until further order."

The sub-section does not in terms confer jurisdiction on the Court but it confers power to make orders and presupposes jurisdiction.

Whether the source of jurisdiction is to be found primarily in s 64 along with s 63(1) as the appellant argued, or in a much wider range of sections in Pt VII as the Commonwealth argued [F105] , it is clear that the welfare of a child of a marriage is a "matter" which arises under Pt VII for the purposes of s 63(1) and is, therefore, an independent subject which may support proceedings before the Family Court. Although there are limits on that jurisdiction, there is no doubt that it encompasses the circumstances of the present case.

What was achieved by the amendments of 1983 and was not rescinded by the change to the Act in 1987 was a vesting in the Family Court of the substance of the parens patriae jurisdiction, of which one aspect is the wardship jurisdiction. And we agree with McCall J. in the present case [F106] that the fact that the Family Court "may not have the power to make a child a ward of the court does not ... prevent it exercising the general parens patriae power with respect to children".

Before leaving this analysis of the Act we should add that, in our view, the Family Court has no power under the Act to enlarge the powers of a guardian under s 63E(1) so that he or she can consent to the sterilisation of a child. We agree with Nicholson CJ that [F107] :

"the subsection is designed to give a court flexibility in the assignment of custodial and guardianship powers to parents so that, in appropriate cases, powers normally regarded as incidents of guardianship can be conferred upon the custodial parent and vice versa but I do not think that the section operates to extend the court's powers".

The nature of the welfare jurisdiction

As already mentioned, the welfare jurisdiction conferred upon the Family Court is similar to the parens patriae jurisdiction. The history of that jurisdiction was discussed at some length by La Forest J. in Re Eve [F108] . His Lordship pointed out [F109] that "(t)he Crown has an inherent jurisdiction to do what is for the benefit of the incompetent. Its limits (or scope) have not, and cannot, be defined." In Wellesley v. Duke of Beaufort, Lord Eldon L.C., speaking with reference to the jurisdiction of the Court of Chancery, said [F110] :

"(I)t belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them."

When that case was taken on appeal to the House of Lords, Lord Redesdale noted [F111] :

"Lord Somers resembled the jurisdiction over infants, to the care which the Court takes with respect to lunatics, and supposed that the jurisdiction devolved on the Crown, in the same way."

Lord Redesdale went on to say [F112] that the jurisdiction extended "as far as is necessary for protection and education".

To the same effect were the comments of Lord Manners who stated [F113] that "(i)t is ... impossible to say what are the limits of that jurisdiction". The more contemporary descriptions of the parens patriae jurisdiction over infants invariably accept that in theory there is no limitation upon the jurisdiction [F114] That is not to deny that the jurisdiction must be exercised in accordance with principle. However, as appears from the authorities discussed earlier, the jurisdiction has been exercised in modern times so as to permit medical operations on infants which result in sterilisation.

No doubt the jurisdiction over infants is for the most part supervisory in the sense that the courts are supervising the exercise of care and control of infants by parents and guardians. However, to say this is not to assert that the jurisdiction is essentially supervisory or that the courts are merely supervising or reviewing parental or guardian care and control. As already explained, the parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind. So the courts can exercise jurisdiction in cases where parents have no power to consent to an operation, as well as cases in which they have the power [F115] .

What is involved in authorisation?

It is necessary to consider the precise function of a court when it is asked to authorise the sterilisation of an intellectually disabled child. It is to be remembered that what is sought is not the court's consent as, for example, in the signing of hospital forms, but its authorisation.

The function of a court when asked to authorise sterilisation is to decide whether, in the circumstances of the case, that is in the best interests of the child. We have already said that it is not possible to formulate a rule which will identify cases where sterilisation is in his or her best interests. But it should be emphasised that the issue is not at large. Sterilisation is a step of last resort. And that, in itself, identifies the issue as one within narrow confines.

In the context of medical management, "step of last resort" is a convenient way of saying that alternative and less invasive procedures have all failed or that it is certain that no other procedure or treatment will work [F116] . The objective to be secured by sterilisation is the welfare of the disabled child. Within that context, it is apparent that sterilisation can only be authorised in the case of a child so disabled that other procedures or treatments are or have proved inadequate, in the sense that they have failed or will not alleviate the situation so that the child can lead a life in keeping with his or her needs and capacities.

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 courts must grapple. As we have shown, it is confined by the notion of "step of last resort", so that, for example, in the case of a young woman, regard will necessarily be had to the various measures now available for menstrual management and the prevention of pregnancy [F117] . And, if authorisation is given, it will not be on account of the convenience of sterilisation as a contraceptive measure, but because it is necessary to enable her to lead a life in keeping with her needs and capacities. 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.

In the circumstances with which we are concerned, the best interests of the child will ordinarily coincide with the wishes of the parents. In cases of that kind, all that will be necessary is for the court to declare that the procedure in question is or is not in his or her best interests.

On occasion, the courts may refuse to authorise a sterilisation desired by the parents. Again, in that case, a declaration will issue that the procedure is not in the best interests of the child and, if necessary, consequential injunctive relief will be granted. And it may be that in an exceptional case a court may authorise sterilisation against the wishes of the parents. In a case of that kind, the court will issue its declaration to that effect and, if necessary, will also appoint some person to give consent in accordance withend 106 ALR 412; start 106 ALR 413 its declaration. In an exceptional case in which a court authorises sterilisation against the wishes of the parents, it will do so with the benefit of a range of medical and other advice which will equip it to determine whether that course is necessary to enable a handicapped child to lead a life in keeping with his or her needs and capacities. Limitations on the jurisdiction of the Family Court: Impact on State laws

Questions arose in the course of argument as to the effect of an order made by the Family Court in the exercise of its jurisdiction with respect to the welfare of a child, as to the impact of such an order on State laws and also whether there are any limits on this "welfare jurisdiction". It was asked, for example, what is the consequence of an order of the Family Court, authorising sterilisation, for State or Territory criminal laws regarding assault? Does the federal jurisdiction authorise the making of an order for the release from custody of a minor convicted under State orend 175 CLR 260; start 175 CLR 261 Territory law of an offence if it were thought to be for the welfare of the minor? These are related questions to some extent in that it was suggested that if a consequence of certain orders of the Family Court rendered State laws somehow unworkable, this would indicate that the welfare jurisdiction of the Family Court was, or should be, limited.

Ultimately, however, any limitation on the jurisdiction of the Family Court conferred, or apparently conferred, by the Family Law Act must be constitutional. The Act is limited in its operation by reference to the constitutional powers under which it is enacted: "Marriage" (s 51(xxi)); "Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants" (s 51(xxii)); and, so far as the Northern Territory is concerned, the territories power (s 122). In the present case the emphasis was naturally on the marriage power and, as well, the territories power.

In Fountain v. Alexander Gibbs CJ said [F118] :

"The power of the Parliament to make laws with respect to marriage does not extend to laws for the protection or welfare of the children of a marriage except in so far as the occasion for their protection or welfare arises out of, or is sufficiently connected with, the marriage relationship."

Clearly there are limits on the scope of the welfare jurisdiction, as with the custody and maintenance jurisdictions, though the scope of the jurisdiction will nevertheless be very wide. So long as an order of the Family Court is constitutional, there can be no limitation on the Court's powers emanating from the need to preserve the scope of State legislative powers. To hold otherwise would be, as counsel for the Commonwealth said, to take the law back beyond the Engineers' Case [F119] .

It is clear enough that a question of sterilisation of a child of a marriage arises out of the marriage relationship and that the sterilisation of a child arises from the custody or guardianship of a child. Therefore, jurisdiction to authorise a sterilisation is within the reach of power of the Commonwealth, quite apart from the operation of the Constitution.

But what effect does an order of the Family Court have on State laws? We have already indicated that authorisation is a declaration that sterilisation is in the best interests of the child. When made, it provides the framework in which persons (including, of course, parents) appointed for the limited purpose of consenting in accordance with the declaration may give any requisite consent on behalf of the child. Accordingly, there is no question of overriding State laws about assault which require consent to surgery. Although the criminal law of the Northern Territory is collected in a Code, there are examples of its provisions resting on law from other sources. Parental consent to other kinds of treatment, itself, is an exception to personal consent not provided for in the Code. Although parents have a duty to provide necessaries of life, there is no Code provision allowing for parental consent to treatment of minors. An order from the Family Court can be characterised as part of family law, as is the doctrine of parental consent and, as such, can be described as a substitute for personal consent, the operation of the laws of assault continuing to have effect.

Reference has already been made in this judgment to provisions of the Code which make it clear that, if there is an order of the Family Court authorising sterilisation, made within power, no criminal consequences are likely to ensue for the medical practitioner who performs the operation. There would be no unlawful assault (s 188) because the act was authorised [F120] .

The Solicitor-General for New South Wales (the State was an intervener) drew attention to the Children (Care and Protection) Act 1987 (NSW), s 20B of which provides that a person who carries out "special medical treatment" on a child who is under the age of 16 years, otherwise than in accordance with the section, commits an offence. Special medical treatment includes "any medical treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out" [F121] . The Supreme Court of New South Wales is empowered to give its consent to such treatment only if the treatment is necessary in order to save the child's life or to prevent serious damage to the child's health [F122] . A medical practitioner may carry out special medical treatment on a child who is under the age of 16 years without the consent of the Court in situations of urgency [F123] The Children (Care and Protection) Act is a prescribed child welfare law within the meaning of Family Law Act. Family Law Act reads:

"A court having jurisdiction under this Act shall not make an order under this Act in relation to a child who is in the custody of, or under the guardianship, care and control or supervision of, a person under a child welfare law unless the order is expressed to come into effect when the child ceases to be in such custody or under such guardianship, care and control or supervision, as the case may be."

(which ) affects:

"(e) the operation in relation to the child of a child welfare law".

No doubt, the existence of the New South Wales legislation may give rise to difficulties in view of the self-imposed limitation in s 60H [F124] . But they are not difficulties to be resolved by a judgment in the present appeal. It was not suggested that there was in the Northern Territory legislation anything comparable to the Children (Care and Protection) Act or otherwise that would bring s 60H into play in the present circumstances.

For present purposes it is enough to say that an order of the Family Court authorising a sterilisation operation would emanate from a constitutionally valid Commonwealth law and that the order would have an effect, in conjunction with the relevant Territory legislation, which would remove the operation from the area of the criminal law.

Answers

In the light of the reasons in this judgment we would answer the questions in the case stated as follows:

(1) No.
(2) (a) Yes.
(b) No.
(c) No, though in authorising the carrying out of such a procedure, the Family Court may, if necessary, permit the Applicants to give any requisite consent.
(3) The step referred to in question 2(a) is required by law.


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