Secretary, Department of Health and Community Services v JWB and SMB

[1992] HCA 15

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

SECRETARY, DEPARTMENT OF HEALTH AND COMMUNITY SERVICES v. J.W.B. AND S.M.B. (MARION'S CASE.)

(1992) 175 CLR 218

6 May 1992

Children—Family Law (Cth)

Children—Intellectual disability—Sterilization—Power of parents to consent—Assault—Parens patriae jurisdiction of court—Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187 188. Family Law (Cth)—Family Court—Jurisdiction—Welfare—Parens patriae—Intellectually disabled child—Sterilization—Power of Court to authorize operation—Effect of authorization on criminal law—Family Law Act 1975 (Cth), ss. 63, 64, 64E—Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187, 188.

Decisions

MASON C.J., 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 (1) (1) "Mental retardation" is the language of the application to the Family Court. Throughout this judgment different expressions are used to reflect the terminology of argument and of decisions under consideration. Current usage prefers the term "intellectual disability"., 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.

2. 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 C.J. 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?"

3. The questions were answered as follows:
Nicholson C.J. (2) Re Marion (1990) 14 Fam LR 427, at
p 452; (1991) FLC 92-193, at p 78,304: "(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. (3) ibid., at p 462; p 78,313 of FLC:

"(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. (4) ibid., at p 481; p 78,329 of FLC: "(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

4. There is an initial question as to whether s.73 of 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) (5) (1991) 66 ALJR 107; 104 ALR 89.. The Court has jurisdiction to dispose of the present appeal.
The issues

5. 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.

6. 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?

7. 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 (6)For New South Wales, see the Children (Care and Protection) Act 1987 (N.S.W.), s.20B(2)(b) and the Disability Services and Guardianship Act 1987 (N.S.W.), s.36(b). For South Australia, see the Mental Health Act 1977 (S.A.), s.28b., 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

8. 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.

9. The Criminal Code Act 1983 (N.T.) ("the Code") provides that an act is unlawful if it is done "without authorization, justification or excuse" (7) s.1. See also ss.24 and 25.. 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 (8) s.181.

10. 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 (9) 17th ed. (1830), vol 3, p 120:
"(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".

11. 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 (10) The Code, s.26(3). and at common law a comparable qualification exists with respect to assault in some circumstances. A.-G. Reference (No.6 of 1980) (11) (1981) QB 715 held that those entering into a consensual fight were guilty of assault if they intended to inflict bodily harm (12) See also The Queen v. Coney (1882) 8 QBD 534; The King v. Donovan (1934) 2 KB 498. The rationale for this exception appears to rest in the idea that some harms involve public, not just personal, interests (13)The Queen v. Coney (1882) 8 QBD, at p 549; and see Glanville Williams, Textbook of Criminal Law, 2nd ed. (1983), pp 582-583,586-587 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 (14) (1984) 1 WLR 1172, at p 1177; (1984) 3 All ER 374, at p 378 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".

12. Medical treatment of adults with full mental capacity does not come within any of the exceptions mentioned (15) In re F (1990) 2 AC 1, per Lord Goff of Chieveley at pp 73-74; cf. Wilson v. Pringle (1987) QB 237, at p 252. It may fall within s.187(c) of the Code. 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 (16) s.26(3). 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 (17) (1914) 105 NE 92, at p 93:
"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".

13. 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 (18)(1954) 1 WLR 1169, per Hodson L.J. (with whom Evershed M.R. agreed) at pp 1175-1176; per Denning L.J. at p 1181; (1954) 3 All ER 59, at pp 63-64 and p 68 respectively. But what of medical treatment of those who, because of incapacity, cannot consent? What, besides personal consent, can render surgical intervention lawful?

14. 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 (N.T.). That Act provides (19)s.3(1) and (3)(b). The different nature and status of parental consent as opposed to personal consent is reflected in s.3(4)(b) of the Act which makes provision for a doctor to perform an emergency operation on a child even in the absence of parental consent which has been sought 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 (N.T.). 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

15. 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 (20) s.63F(1) of the Family Law Act. 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."

16. 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 C.J. thought (21) Re Marion (1990) 14 Fam LR, at p 447; (1991) FLC, at p 78,300 that s.63E(1) "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 s.63E, "introduced significant changes" (22) ibid., at p 470; p 78,320 of FLC and "were deliberately intended to entrust to parents and guardians the responsibility for medical treatment other than of an immediate or urgent nature" (23) ibid., at p 471; p 78,320 of FLC 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.

17. 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

18. 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?

19. By virtue of legislation, the age of majority in all States and Territories of Australia is 18 years (24)Minors (Property and Contracts) Act 1970 (N.S.W.), s.9; Age of Majority Act 1977 (Vic.), s.3; Age of Majority Act 1974 (Q.), s.5; Age of Majority (Reduction) Act 1970 (S.A.), s.3; Age of Majority Act 1972 (W.A.), s.5; Age of Majority Act 1973 (Tas.), s.3; Age of Majority Act 1974 (N.T.), s.4; Age of Majority Act 1974 (A.C.T.), s.5. 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 (25) s.63F. In some States a minor's capacity to give informed consent to medical treatment is regulated by statute (26)See Minors (Property and Contracts) Act 1970 (N.S.W.), s.49(2) and Consent to Medical and Dental Procedures Act 1985 (S.A.), s.6(1) 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 (27)See the analysis by Devereux, "The Capacity of a Child in Australia to Consent to Medical Treatment - Gillick Revisited?", (1991) 11 Oxford Journal of Legal Studies 283 (hereafter "Devereux"), at pp 284-287. However, the recent House of Lords decision in Gillick v. West Norfolk AHA (28) (1986) AC 112 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 (29) ibid., at pp 183-184:
"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" (30) ibid., at p 189, and see pp 169, 194-195.

20. This approach, though lacking the certainty of a fixed age rule, accords with experience and with psychology (31)The psychological model developed by Piaget (Piaget and Inhelder, The Psychology of the Child, (1969)), one of the leading theorists in this area, suggests that the capacity to make an intelligent choice, involving the ability to consider different options and their consequences, generally appears in a child somewhere between the ages of 11 and 14. But again, even this is a generalisation. There is no guarantee that any particular child, at 14, is capable of giving informed consent nor that any particular ten year old cannot: see Morgan, "Controlling Minors' Fertility", (1986) 12 Monash University Law Review 161. It should be followed in this country as part of the common law (32)As to the priority of parental rights and the capacity of a child to refuse medical treatment for mental illness, see In re R (A Minor) (1991) 3 WLR 592, per Lord Donaldson of Lymington M.R. at pp 600-601; (1991) 4 All ER 177, at pp 185-186. But see also the comment on Lord Donaldson's judgment by Bainham in "The Judge and the Competent Minor", (1992) 108 Law Quarterly Review 194.

21. 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 (33) Nelson Textbook of Pediatrics, 13th ed. (1987), p 102, 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 (34)"Sterilizing the mentally-handicapped: Who can give consent?", (1980) 122 Canadian Medical Association Journal 234, in Committee on Rights of Persons with Handicaps (South Australia), The Law and Persons with Handicaps, vol 2: Intellectual Handicaps (1981) (hereafter "The Law and Persons with Handicaps"), p 125:
"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.

22. 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 (35)Rassaby, "Informed Consent to Medical Care by Persons of Diminished Capacity" in Law Reform Commission of Victoria, Informed Consent, (1987) 77 (hereafter "Rassaby"), at pp 79-80. 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.

23. The Committee on Rights of Persons with Handicaps (South Australia) said (36) The Law and Persons with Handicaps, p 123:
"(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."

24. 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?

25. 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.

26. 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.

27. 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 (37)See, for example, In re D (A Minor) (1976) 2 WLR 279, at p 288; (1976) 1 All ER 326, at p 334; Re Jane (1988) 94 FLR 1, at pp 26, 27; 85 ALR 409, at pp 435, 436; 12 Fam LR 662, at pp 685, 687; (1989) FLC 92-007, at pp 77,257, 77,258. See also In Re F (1990) 2 AC, per Lord Griffiths at p 69 and per Lord Goff at p 79.

28. 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

29. There are four relevant Australian decisions concerning sterilisation, apart from the Family Court's decision in the present case. They are: Re a Teenager (38) (1988) 94 FLR 181; 13 Fam LR 85; (1989) FLC 92-006; Re Jane; Re Elizabeth (39) (1989) 13 Fam LR 47; (1989) FLC 92-023; and Attorney-General (Qld) v. Parents ("In re S") (40) (1989) 98 FLR 41; 13 Fam LR 660; (1990) FLC 92-124. 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.

30. 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 (41) Re a Teenager (1988) 94 FLR, at pp 220-221; 13 Fam LR, at p 120; (1989) FLC, at p 77,224:
"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".

31. 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" (42) ibid., at p 196; p 98 of Fam LR; p 77,206 of FLC 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" (43) ibid., at p 197; p 99 of Fam LR; p 77,206 of FLC would risk the denial of the protection granted families by s.43(b) of the 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".

32. 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 C.J. 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" (44) Re Jane (1988) 94 FLR, at pp 30-31; 85 ALR, at pp 439-440; 12 Fam LR, at pp 689-690; (1989) FLC, at p 77,260. 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" (45) ibid., at p 8; p 417 of ALR; p 669 of Fam LR; p 77,243 of FLC and the right, or liberty, to reproduce or to choose not to do so (46) ibid., at pp 9-11; pp 418-420 of ALR; pp 670-672 of Fam LR; pp 77,244-77,245 of FLC 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 C.J. relied on the judgment of Sachs L.J. in Hewer v. Bryant (47) (1969) 3 WLR 425, at p 433; (1969) 3 All ER 578, at pp 584-585 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 (48) Re Jane (1988) 94 FLR, at p 26; 85 ALR, at p 435; 12 Fam LR, at p 685; (1989) FLC, at p 77,256:
" 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 (49) (1988) 94 FLR, at p 223; 13 Fam LR, at p 122; (1989) FLC, at p 77,226, saying (50) Re Jane (1988) 94 FLR, at p 26; 85 ALR, at p 435; 12 Fam LR, at p 685; (1989) FLC, at p 77,257:

"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."

33. 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 C.J. employed, though somewhat tentatively, the distinction between "therapeutic" and "non-therapeutic" operations (51) ibid., at pp 30-31; pp 439-440 of ALR; pp 689-690 of Fam LR; p 77,260 of FLC, 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") (52) (1986) 2 SCR. 388; (1986) 31 DLR (4th) 1, but was criticised in In re B (A Minor) (53) (1988) AC 199, at pp 203-204, 205, 211-212 by the House of Lords as a test for determining the scope of the parens patriae jurisdiction. In the end Nicholson C.J. 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 (54) Re Jane (1988) 94 FLR, at pp 31, 30; 85 ALR, at p 440; 12 Fam LR, at p 690; (1989) FLC, at p 77,260.

34. Ross-Jones J. in Re Elizabeth agreed with Nicholson C.J., 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 (55) Re Elizabeth (1989) 13 Fam LR, at p 62; (1989) FLC, at p 77,376 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.

35. 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.

36. In the case now before the Court Nicholson C.J. adhered to the conclusion he had reached in Re Jane, saying (56) Re Marion (1990) 14 Fam LR, at p 448; (1991) FLC, at p 78,301:
"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 C.J. relied and later to the Family Law Act.

New Zealand

37. In Re X (57) (1991) 2 NZLR 365 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

38. 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 (58) (1988) AC, per Lord Bridge of Harwich at p 205; see also Lord Templeman at p 206 and Lord Oliver of Aylmerton at p 211 the reasoning of Heilbron J. in In re D, a case decided some 12 years earlier. In the earlier case Heilbron J. said (59) (1976) 2 WLR, at p 286; (1976) 1 All ER, at p 332:
" 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" (60) (1986) 2 SCR, at p 431; (1986) 31 DLR (4th), at p 32. See In re B (1988) AC, at pp 203-204, 204-205. 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 (61) (1988) AC, at p 205 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 (62) ibid., at p 206 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".

39. 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 (63)(1990) 2 AC, per Lord Bridge at pp 51-52; per Lord Brandon of Oakbrook at p 56; per Lord Goff at p 79; per Lord Jauncey of Tullichettle at pp 83-84 and that the procedure was lawful if it was in the best interests of the woman (64) ibid., per Lord Bridge at pp 51-52; per Lord Brandon at p 55; per Lord Goff at pp 77-78; per Lord Jauncey at pp 83-84. However, as Nicholson C.J. said in the present case (65) Re Marion (1990) 14 Fam LR, at p 437; (1991) FLC, at p 78,291, 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 (66) In re F (1990) 2 AC, at pp 70-71 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 (67) ibid., per Lord Bridge at p 51; per Lord Brandon (with whom Lord Jauncey agreed) at p 57; per Lord Goff at p 79, 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 (68) ibid., at p 56:
"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

40. 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 (69)See the statement of Mr Justice Holmes in Buck v. Bell (1927) 274 US 200, at p 207, that "(t)hree generations of imbeciles are enough"; Law Reform Commission of Canada (Working Paper No.24, 1979), Sterilization: Implications for Mentally Retarded and Mentally Ill Persons, (hereafter "the Canadian Report"), pp 24-29; see also Goldhar, "The Sterilization of Women with an Intellectual Disability", (1991) 10 University of Tasmania Law Review 157. 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.

41. The case of AL v. GRH (70) (1975) 325 NE 2d 501 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 (71) ibid., at p 502:
"(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".

42. In Stump v. Sparkman (72) (1978) 435 US 349. 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 (73) ibid., at pp 358-359.

43. One of the leading United States cases in this context is that of In re Grady (74) (1981) NJ 426 A 2d 467 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 (75) ibid., at pp 471-472:
"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' (76) Skinner v. Oklahoma (1942) 316 US 535, at p 541. ... 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 C.J. said in the present case (77) Re Marion (1990) 14 Fam LR, at p 443; (1991) FLC, at p 78,296, 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.

44. 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 (78) In re Grady (1981) NJ 426 A 2d, at p 475:
" 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.

45. 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 (79) (1978) 452 F Supp 361. Matter of Guardianship of Hayes (80) (1980) Wash. 608 P 2d 635 and Matter of Moe (81) (1982) Mass. 432 NE 2d 712.
Summary of earlier decisions

46. 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.

47. 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

48. 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.

49. 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.

50. 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 (82) Devereux, at pp 298-301; Rassaby, at pp 78-79. 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 (83)Rassaby, at pp 79-80; the Canadian Report, pp 50, 60-70; and note the striking results of unconscious race, class and gender bias on decisions to sterilise which are recorded at pp 42-44. 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 (84)Strahan (ed.) On the Record: A Report on the 1990 STAR conference on sterilisation (Victoria), pp 6-7; the Canadian Report, pp 36-49; Goldhar, op cit, at p 157 (reference to recent government reports). See also In re D and Stump v. Sparkman. In the latter case there was court involvement but the application for sterilisation was heard ex parte. (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 (85)See, for example, Re a Teenager (1988) 94 FLR, at pp 221-222, 223-224; 13 Fam LR, at pp 120-121, 122; (1989) FLC, at pp 77,224-77,225, 77,226; In re F (1990) 2 AC, per Lord Goff at p 78; Re Eve (1986) 2 SCR., at p 399; (1986) 31 DLR (4th), at pp 7-8, citing from the judgment of the provincial Supreme Court in that case. Two concerns emerge from this. It is hard to share the view of Cook J. in Re a Teenager (86) (1988) 94 FLR, at p 223; 13 Fam LR, at p 122; (1989) FLC, at p 77,226 that absolute faith in the integrity of all medical practitioners is warranted. We agree with Nicholson C.J. in Re Jane (87) (1988) 94 FLR, at p 26; 85 ALR, at p 435; 12 Fam LR, at p 685; (1989) FLC, at pp 77,257 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 (88) See cases mentioned in fn.(37). 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 (89)See, for example, Re Jane (1988) 94 FLR, at pp 27, 30; 85 ALR, at pp 436, 439; 12 Fam LR, at pp 687, 689; (1989) FLC, at pp 77,258, 77,260; Re K and Public Trustee (1985) 3 WWR 204, per Wood J. at p 224, at first instance and (1985) 19 DLR (4th) 255, per Anderson J.A. at p 279, cited with approval by Cook J. in Re a Teenager (1988) 94 FLR, at p 208; 13 Fam LR, at p 108; (1989) FLC, at p 77,214. There is no doubt that caring for a seriously handicapped child adds a significant burden to the ordinarily demanding task of caring for children (90)See Yura, "Family Subsystem Functions and Disabled Children: Some Conceptual Issues" in Ferrari and Sussman (eds), "Childhood Disability and Family Systems", (1987) 11 Marriage and Family Review, 1/2, 135; Kazak, "Professional Helpers and Families with Disabled Children: A Social Network Perspective" in Ferrari and Sussman (eds), op cit, 177. 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.

51. 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 (91) (1981) NJ 426 A 2d, at pp 471-472, 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 (92)The Canadian Report, p 50, reporting on Sabagh and Edgerton, "Sterilized Mental Defectives Look at Eugenic Sterilization", (1962) 9 Eugenics Quarterly 213 that "sterilized mentally retarded persons tend to perceive sterilization as a symbol of reduced or degraded status". Another study found (93)Roos, "Psychological Impact of Sterilization on the Individual", (1975) 1 Law and Psychology Review 45, at p 54, in the Canadian Report, pp 50-51 and see generally pp 49-52 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."

52. 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 C.J. pointed out in Re Jane in the passage quoted earlier (94) (1988) 94 FLR, at p 26; 85 ALR, at p 435; 12 Fam LR, at p 685; (1989) FLC, at p 77,256, 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.

53. 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 s.63E(1) of the 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".

54. Children with intellectual disabilities are particularly vulnerable, both because of their minority and their disability, and we agree with Nicholson C.J. (95) ibid., at p 27; p 436 of ALR; p 687 of Fam LR; p 77,258 of FLC 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 s.63C(1) of the Family Law Act (96)See generally Blackwood, "Sterilisation of the Intellectually Disabled: The Need for Legislative Reform", (1991) 5 Australian Journal of Family Law 138.

55. 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 (97)See Kingdom, "The Right to Reproduce" in Ockelton (ed.), Medicine, Ethics and Law, (1986), 55; cf. Freeman, "Sterilising the Mentally Handicapped" in Freeman (ed.), Medicine, Ethics and the Law, (1988), 55. 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?

56. 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.

57. 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) (N.T.), 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.

58. 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 s.4(1) of 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".

59. Section 64(1) dealt with proceedings with respect to the "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 (98)See the discussion of wardship jurisdiction by Mason J. in Fountain v. Alexander (1982) 150 CLR 615, at pp 634-635.

60. 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 (99) s.64(1). 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 ..."

61. The Attorney-General, in the second reading speech introducing the Family Law Amendment Bill of 1983, said(100) Australian Senate Parliamentary Debates (Hansard), 1 June 1983, p 1098.:
" 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."

62. 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.

63. 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(101) See Re Marion (1990) 14 Fam LR, at pp 431-436, 452-453, 474-479; (1991) FLC, at pp 78,286-78,291, 78,304, 78,323-78,327 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(102) Pt VII, 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(103) See Nicholson C.J. in Re Marion (1990) 14 Fam LR, at p 435; (1991) FLC, at p 78,290. 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(104) Johnson v. Director-General of Social Welfare (Vic.) (1976) 50 ALJR 562, per Barwick C.J. at p 564; 9 ALR 343, at p 346; see also McCall J. in Re Marion (1990) 14 Fam LR, at pp 478-479; (1991) FLC, at p 78,327.

64. 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.

65. 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(105) See, for example, ss.64(1B), 65, 70C, 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.

66. 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(106) Re Marion (1990) 14 Fam LR, at p 480; (1991) FLC, at p 78,328 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".

67. Before leaving this analysis of the Act we should add that, in our view, the Family Court has no power under s.63E(3) of 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 C.J. that(107) ibid., at p 436; p 78,291 of FLC:
"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

68. 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(108) (1986) 2 SCR., at pp 407-417; (1986) 31 DLR (4th), at pp 14-21. His Lordship pointed out(109) ibid., at p 410; p 16 of DLR 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(110) (1827) 2 Russ 1, at p 20 (38 ER 236, at p 243):
"(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."

69. When that case was taken on appeal to the House of Lords, Lord Redesdale noted(111) Wellesley v. Wellesley (1828) 2 Bli N S 124, at p 131 (4 ER 1078, at p 1081):
" 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(112) ibid., at p 136 (p 1083 of ER) that the jurisdiction extended "as far as is necessary for protection and education".

70. To the same effect were the comments of Lord Manners who stated(113) ibid., at p 142 (p 1085 of ER) 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(114) See In re X (A Minor) (1975) 2 WLR 335, at pp 339-340, 342, 345, 345-346; (1975) 1 All ER 697, at pp 699-700, 703, 705, 706. 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.

71. 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(115) The breadth of the wardship jurisdiction of the English courts was emphasised in In re R (A Minor).
What is involved in authorisation?

72. 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.

73. 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.

74. 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(116) See Wilson et al (eds), Harrison's Principles of Internal Medicine, 12th ed. (1991), pp 10-11. 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.

13. However, the duty of a parent to provide medical treatment for a child is no longer the exclusive domain of the common law or the Poor Relief Act. During the last hundred years, legislation has made it an offence in certain circumstances for parents to fail to provide medical treatment for their children. Some jurisdictions in Australia make it an offence if the parents wilfully neglect to provide medical treatment for a child and the neglect is likely to result in harm to the child(285) Community Welfare Act 1972 (S.A.), s.72; Children and Young Persons Act 1989 (Vic.), s.261; Children's Services Act 1965 (Qld), s.69. Some jurisdictions make it an offence to wilfully neglect to provide medical aid(286) Child Welfare Act 1960 (Tas.), s.66; Child Welfare Act 1947 (W.A.), s.31A. And some jurisdictions make it an offence to neglect to provide medical aid to a child unless there is a reasonable excuse for not doing so(287) Children (Care and Protection) Act 1987 (N.S.W.), s.26; Criminal Code Act 1983 (N.T.), s.149. But nothing in the terms of this legislation nor in the implied duties which they impose give any ground for concluding that parents have a general power to consent to the medical treatment of their children. None of this legislation, for example, provides, even by implication, a duty to provide cosmetic surgery or treatment. At most, the legislation imposes a duty on parents not to neglect to provide necessary medical treatment for their child.
2) Natural right of control of person and property

14. In the 19th and for much of the 20th century, the power of a parent to consent to the medical treatment of a child was almost certainly derived from what was considered to be a natural right in the father of near absolute control over the person and property of his child. Many cases decided in the last century can only be explained on the basis that a father had such control over his children. In R. v. De Manneville(288) (1804) 5 East 221, at p 221 (102 ER 1054, at p 1054), for example, the King's Bench held that a father had the right to seize and retain custody of a "child then at the breast". In In re Agar-Ellis. Agar-Ellis v. Lascelles(289) (1883) 24 Ch D 317, it was not suggested that the mother was of bad character, yet the Court of Appeal held that the father had the right to refuse permission to his daughter, aged 17, to see or correspond with her mother without showing the correspondence to him or his nominee. Brett M.R. said(290) ibid., at p 326 that "the father has the control over the person, education and conduct of his children until they are twenty-one years of age. That is the law."

15. However, the father's near absolute right of control over the person, education and conduct of his children has been taken away by a series of enactments in England and Australia in the last hundred and fifty years and by the social and judicial recognition of children as persons with independent rights. Thus, legislation has given the mother as well as the father the right to the custody of their children. Moreover, the "welfare of the child" criterion means that, where the child is young, a custody dispute between the father and mother will usually be resolved in favour of the mother. Furthermore, the courts have increasingly recognised the "rights" of children by taking account of their wishes in custody disputes. In other cases, the courts have recognised the ability of mature children to make decisions concerning their own affairs. In an era in which many children over the age of fourteen leave home, support themselves, and enter into commercial dealings and de facto and sexual relationships, the Courts could hardly do otherwise. Consequently, in Hewer v. Bryant(291) (1970) 1 QB 357, at p 369, Lord Denning said:
"that the legal right of a parent to the custody of a child
ends at the 18th birthday: and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice." Lord Fraser of Tullybelton gave his approval to "every word" of this passage in Gillick(292) (1986) AC, at p 172 where the House of Lords held that, if a female under the age of 16 years has sufficient intelligence and maturity to understand the nature of and need for contraceptive treatment, she has the legal capacity to obtain contraceptive treatment notwithstanding the objections of her parents. Other cases have also held that a minor of sufficient intelligence and maturity can give a lawful consent to acts which require consent as a condition of their legality(293) See, for example, Reg. v. D (1984) AC 778, at p 806; Reg. v. Howard (1966) 1 WLR 13. Modern case law makes it impossible, therefore, to assert that parents have a natural right of almost absolute control over the person, education, conduct and property of their children. Consequently, the power of parents to consent to medical treatment and surgical procedures in respect of their children can no longer be regarded as existing as an incident or corollary of such a right.
3) Right of advancement

16. Once it is accepted that the power of parents to give a valid consent to the medical treatment of their children does not arise from a duty or from a natural right of almost absolute control over the person of the child, it follows that the common law gives this power to parents simply because it perceives them to be the most appropriate repository of such a power. Both the interests of the child and the interests of society require that, wherever possible, a child should not be deprived of medical treatment that is for his or her benefit. Consequently, a just and rational legal system must make provision for the care of those who, by reason of infancy, lack the capacity to control and manage their own affairs. This means that the legal system must give a person or persons authority to act on behalf of children in respect of matters in which they are unable to act for themselves. In the case of children(294) Bromley and Lowe, Family Law, 7th ed. (1987), p 254:
"Apart from a public authority, the most obvious candidates
are one or both of the child's parents and it is in such persons that English law, in keeping with most other societies, has vested such authority and responsibility." Although the case for making the parents the repository of such authority is not perhaps as clear cut as is conventionally thought, that case is, nevertheless, supported by strong sociological, psychological and administrative considerations(295) See G. Dworkin, The Theory and Practice of Autonomy, (1988), p 95. As Dworkin points out, these grounds include respect for the family as the decision making unit, the appropriateness of giving the power to those who possess a moral duty to protect the child and who are, therefore, likely to have the child's best interests in mind, and the cost and inconvenience of vesting the power in others such as government officials.

17. The authority to act for children is conferred on parents, however, for the benefit of the child and not for the benefit of the parents(296) Gillick (1986) AC, at p 170. Once that is acknowledged, "the family is to be conceived as a community of individuals with separable interests and not merely as a unitary state to be controlled by a (benevolent?) despot"(297) Montgomery, "Children As Property?", (1988) 51 Modern Law Review 323, at p 332. Consequently, when a custodial parent gives consent to the medical treatment of his or her child, the parent does so as agent for the child. However, the parent's consent is not substituted for that of the child in the sense that the parent should make the decision which the child would have made if the child was mature enough to give consent. Ex hypothesi, the child will not have reached the stage where he or she has been able to make realistic plans or to formulate goals for the future. Accordingly, it would be unreal to suggest that a parent should make the decision which the child would make. What the child would have decided, if confronted with the problem, can only be a matter of speculation.

18. Furthermore, because parents are given authority to act for the benefit of the child, their authority is limited to those acts which advance or protect the welfare of the child. This criterion is a matter which must be determined objectively and not by reference to the good faith opinions of the parent. A parent has no authority, therefore, to consent to medical treatment unless it can be seen objectively that the treatment is for the welfare of the child. If a parent purports to give consent to treatment which is not for the welfare of the child, the consent is of no effect. A person who acts on such "consent" is guilty of assaulting the child if the treatment involves any physical interference with the child. Moreover, the parent's authority is at an end when the child gains sufficient intellectual and emotional maturity to make an informed decision on the matter in question. In so far as Re R (A Minor) (Wardship: Consent to Treatment)(298) (1991) 3 WLR 592 suggests the contrary, it is inconsistent with Gillick.

19. One other matter needs to be noted. The powers which the parent exercises on behalf of the child are exercised in the course of a fiduciary relationship(299) See the description of a "fiduciary" in Hospital Products Ltd. v. United States Surgical Corporation (1984) 156 CLR 41, at pp 96-97. At all events, the role of the parent, when acting for the benefit of his or her child, and the role of a fiduciary are sufficiently similar to make at least some of the principles concerning fiduciaries applicable to the parent-child relationship. Thus, in principle, a parent can have no authority to act on behalf of his or her child where a conflict arises between the interests of the parent and the interests of the child. In A.M. Spicer and Son Pty. Ltd. (In Liquidation) v. Spicer(300) (1931) 47 CLR 151, at p 175, Starke J. pointed out: "it is a rule of universal application, in the absence of any
stipulation to the contrary, that no one having such (fiduciary) duties to perform should be allowed to enter into engagements in which he has or can have a personal interest conflicting or which possibly might conflict with the interests of those whom he is bound to protect". This is a matter of significance in cases where the carrying out of or failure to carry out an operation or treatment affects the interests of the parents as well as those of the child. No doubt in most cases of medical treatment or surgery, no conflict will arise between the interests of the parents and those of the child. In other cases, the risk of conflict may be so slight or theoretical that it can be disregarded. But in some cases - and claims that an abortion or sterilisation operation is in the best interest of a child are likely to be among them - a conflict between the interests of the parents and the child may arise. In such a case, the application of established and fundamental principle will deny the right of the parents to consent to the operation or treatment. If an operation or treatment is to be performed or carried out in such a case, only a court of general jurisdiction exercising the parens patriae jurisdiction or the Family Court acting under s.64(1)(c) of the Family Law Act 1975 (Cth) can authorise the operation or treatment. In such a case, the consent of the court has the same effect in law as a valid consent given by a parent or a child with the requisite capacity.
The effect of the Family Law Act

20. A question arose in this case as to whether s.64 of the Family Law Act 1975 (Cth) conferred a "welfare" jurisdiction on the Family Court equivalent to or extending beyond the parens patriae jurisdiction of the Court of Chancery. For the reasons given by Mason C.J., Dawson, Toohey and Gaudron JJ., I am of the opinion that that Court does have a jurisdiction similar to the parens patriae jurisdiction. I am also in general agreement with what their Honours have written concerning the construction, operation and effect of the provisions of the Family Law Act. The Family Court has power, therefore, to give a lawful consent to the carrying out of operations or the rendering of medical treatments in situations where parents are unable or unwilling to act or where there is no person who can give consent on behalf of the child. In addition, I agree with the statement of Nicholson C.J. in the Full Court of the Family Court that s.63E(1) of the Family Law Act "does no more than confer upon the guardians of the child, the normal incidents which the common law confers upon a guardian"(301) Re Marion (1990) 14 Fam LR 427, at p 447; (1991) FLC 92-193, at p 78,300.
Parental consent to sterilisation

21. In principle, no reason exists for denying to parents the power to consent to the sterilisation of a child in their custody. Public policy does not prevent a person from consenting to an operation which will irreversibly sterilise that person(302) Thake v. Maurice (1986) QB 644. Since the parent is the person whom the law entrusts with the power and authority to consent to surgical and medical treatment for the welfare of a child, logically the parent must have the power and authority to consent to any operation or treatment for the welfare of the child which is not contrary to law or public policy.

22. In the United States, however, courts have consistently held that parents do not possess the authority to consent to the sterilisation of their children(303) AL v. GRH (1975) 325 NE 2d 501 (Indiana Court of Appeals); Ruby v. Massey (1978) 452 F.Supp 361 (United States District Court); In re Grady (1981) NJ 426 A. 2d 467 (New Jersey Supreme Court); Matter of Moe (1982) Mass. 432 NE 2d 712 (Massachusetts Supreme Court). Moreover, in Stump v. Sparkman(304) (1978) 435 U.S. 349, at pp 358-359 the United States Supreme Court appeared to approve the decision of the Indiana Court of Appeals in AL v. GRH which held that parents had no authority to consent to the sterilisation of their child. The reasons given for rejecting parental consent as sufficient authority for sterilising a child include the history of abuse of sterilising the intellectually disabled - particularly the fear that they will be sterilised for the convenience of the guardians; the destruction of "an important part of a person's social and biological identity - the ability to reproduce"; and the irreversibility of the procedure. The effect of the blanket rule applied in the United States, however, is that parents cannot consent to an operation which results in the sterilisation of a child even though the procedure is necessary to remove or treat a diseased reproductive organ.

23. Understandable as the United States approach is, as a matter of principle, a line cannot be drawn between sterilisation procedures and other forms of surgical and medical treatment. It is true, as Holmes said(305) The Common Law, (1881), p 5:
"The life of the law has not been logic: it has been
experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." But none of these matters provides any sure ground, in my respectful opinion, for a court to hold that sterilisation procedures should be treated as an exception to the rule that parents can consent to medical treatment and surgical procedures involving their child. If the consensus of the community was that parents ought not to have an unsupervised right to consent to the sterilisation of children, it might be proper to mould common law doctrine to give effect to that consensus, even though the demands of legal principle suggest a contrary course. It might be proper, therefore, to hold that parents cannot give consent to such a procedure without the consent of a court. But as no community consensus on the issue exists, and as the subject of sterilisation "gives rise to moral and emotional considerations to which many people attach great importance"(306) In re F (1990) 2 AC, at p 56, the proper course for a court is to give effect to established principle instead of laying down a rule which gives effect to what that court thinks is the best social solution to the issue.

24. In any event, the social utility of requiring the consent of the court in all cases of sterilisation is debatable. Beneficial as such a course may prove to be in some cases, it would require a depressing view of the discharge of the responsibilities of parents and doctors to conclude that the unnecessary sterilisation of children is so widespread that a blanket rule is the only remedy which can protect children from the abuse of their right to bodily integrity. This is especially true in an era when litigation is always expensive and frequently protracted with the result that, in cases where sterilisation is warranted, applications for consent might not be made. Moreover, as Lord Brandon of Oakbrook pointed out in In re F(307), ibid if every sterilisation operation required curial consent "the whole process of medical care for such patients would grind to a halt". A better remedy for the protection of children than requiring curial consent in all cases of sterilisation is the development of objective standards which the courts can supervise and enforce where necessary. Such standards will promote certainty and consistency in decision making. They will also enable parents to give a valid consent to an operation which will sterilise their child without the cost and trauma associated with litigation.

25. It follows that, as a matter of principle, a parent has authority to consent to the sterilisation of a child in his or her custody if it will advance or protect the welfare of the child. What is in the best interests of the child is conventionally seen as being synonymous with the welfare of the child. To say that a medical or surgical procedure is in the best interests of a child, however, is merely to record a result. Before the best interests of the child can be determined, some principle, rule or standard must be applied to the facts and circumstances of the case(308) cf. Kennedy, "Patients, doctors, and human rights", Blackburn and Taylor (eds.), Human Rights for the 1990s, (1991), pp 90-91.

26. Since sterilisation has grave consequences for a person's adult life, it cannot be in the best interests of a child to pre-empt a choice about that procedure which the child would otherwise have as an adult person. If there is any real possibility that, at some future time, the child will acquire the capacity and maturity to choose whether he or she should be sterilised, the carrying out of that procedure cannot be in the best interests of the child unless, of course, protection of the child's health urgently requires that the procedure be carried out during incompetency. Moreover, it must not be assumed that, simply because the child is intellectually disabled, he or she does not have or cannot acquire the capacity to consent to sterilisation. Intellectually disabled persons will frequently have the capacity to make the choice as to whether they should be sterilised(309) Committee on Rights of Persons with Handicaps (South Australia), The Law and Persons with Handicaps, vol 2: Intellectual Handicaps, (1981), p 125. Furthermore, sterilisation involves invasive procedures resulting in the permanent deprivation of a person's right or liberty to reproduce, with the potentiality for psychological harm including the lowering - perhaps the destruction - of self-esteem and, in the case of the intellectually disabled, the reinforcement of anxieties which are commonly the result of intellectual disability(310) See Law Reform Commission of Canada, (Working Paper No.24 1979), Sterilization: Implications for Mentally Retarded and Mentally Ill Persons, pp 49-52.

27. So grave are the certain and potential effects of sterilisation that that procedure can only be for the welfare of the child if the circumstances are so compelling and so likely to endure that they justify the invasive surgery or procedure involved in sterilisation. The circumstances may be compelling if the failure to carry out the procedure is likely to result in the child's physical or mental health being seriously jeopardised or if it is likely to result in the suffering of pain, fear or discomfort of such severity and duration or regularity that it is not reasonable to expect the child to suffer that pain, fear or discomfort. In these cases, the right of the incompetent person to have his or her body protected against invasive procedures resulting in removal or destruction of reproductive organs is outweighed by the necessity for appropriate "treatment". The circumstances may also be compelling if the failure to carry out the procedure is likely to result in a real risk that an intellectually disabled child will become pregnant and she does not, and never will, have any real understanding of sexual relationships or pregnancy. In such a case, to speak of a fundamental right of reproduction is meaningless. The human dignity of an intellectually disabled child is not advanced, and indeed is denied, by allowing her (by, what is in point of law, rape) to become pregnant and to give birth in circumstances which she cannot understand and which may result in a frightening ordeal for her not only at the time of birth, but for many months prior thereto.

28. What constitutes sufficiently compelling circumstances to justify sterilisation will have to be worked out on a case by case basis. But, unless the case falls within one of the above categories or a category analogous thereto, it should be held that the sterilisation of a child is not for his or her welfare. In particular, it is not for the welfare of an intellectually disabled child to sterilise that child merely to avoid pregnancy or to give effect to eugenic policies. Nor is it for the welfare of the child to sterilise her merely because of the hygiene problems associated with menstruation. As the Law Reform Commission of Canada has pointed out, intellectually disabled females who require a great deal of assistance in managing their menstruation are already likely to require assistance with urinary and faecal control, problems which are much more troublesome in terms of personal hygiene(311) ibid., at p 34. Moreover, even if the case falls within one of the three categories which I have mentioned or an analogous category, it is not in the best interests of a child to sterilise him or her if the harm can reasonably be avoided by means less drastic than sterilisation.

29. Furthermore, as I have indicated, sterilisation is one area where the potential for conflict between the parent's interests and the child's interest exists. As Justice Horowitz pointed out in Matter of Guardianship of Hayes(312) (1980) Wash 608 p 2d 635, at p 640:
"unlike the situation of a normal and necessary medical
procedure, in the question of sterilisation the interests of the parent of a retarded person cannot be presumed to be identical to those of the child." Thus, parents may see sterilisation as relieving them of the worry and distress of the child becoming pregnant or of the burden of caring for a grandchild whom the child would not be able or fully able to care for. If a decision to consent is actuated by interests such as these, a conflict of interest arises. In such a case, the parents have no authority to consent to the sterilisation of their child. However, since parents have authority to consent to a sterilisation procedure only in cases where the grounds for the procedure are compelling it is unlikely that, in practice, conflict will arise. If it does, a court of general jurisdiction invested with the parens patriae jurisdiction or the Family Court may give consent in substitution for the parents.

30. The principles which apply to the sterilisation of children, as I have adumbrated them, fall somewhere between the approach of the Supreme Court of Canada in Re Eve(313) E (Mrs) v. Eve ("Re Eve") (1984) 2 SCR 388; 31 DLR (4th) 1 and the approach of the House of Lords in In re F. In Re Eve, the Supreme Court held that, in the exercise of the parens patriae jurisdiction, a court should not give consent to a non-therapeutic sterilisation. The distinction between therapeutic and non-therapeutic treatment was strongly criticised by members of the House of Lords in In re B (A Minor)(314) (1988) AC 199, at pp 203-204, 205. I agree with Professor Kennedy, in the article to which I have earlier referred, where he said(315) Kennedy, op cit, p 102 that, although "there are problems at the edges" of the two concepts, "(a)n intervention is therapeutic if treatment (therapy) is intended thereby." This definition would include the first two categories of justification to which I have referred but exclude the third category. However, for the reasons that I have already given, I think that, where the child has no real understanding of sexual relationships or pregnancy, sterilisation may be justified if no method of contraception is reasonably feasible. In that respect, I would go beyond the approach of the Supreme Court in Re Eve. Moreover, it would be inconsistent with the historical development of common law principles to close the categories to which they apply. Consequently, unlike the Supreme Court of Canada, I would hold that sterilisation may also be carried out for purposes which are analogous to the three categories to which I have referred. Such an approach allows the law to develop incrementally, guided by the overarching principle that the circumstances must be so compelling that they justify such an invasive procedure as sterilisation.

31. In In re F, the House of Lords held that sterilisation of an incompetent child was justified if it was necessary or in the public interest and that it would be in the public interest if the procedure was in the best interests of the child. Their Lordships held that it will be in the best interests of the patient if a doctor has formed the opinion that sterilisation should be carried out provided that that opinion corresponds with a respectable body of medical opinion among those experienced in the field. Their Lordships (Lord Griffith dissenting on this point) held that the involvement of a court was highly desirable as a matter of good practice although it was not necessary as a matter of law. The approach of their Lordships goes well beyond what I consider is the proper view of the common law, even when the decision to sterilise is ultimately made by a court.

32. In effect, the approach of their Lordships transfers the issue to the medical profession for determination. As Professor Kennedy points out(316) ibid., at pp 89-90, 91, 98, once the doctors approve the procedure, the court gives its consent to the procedure on the basis of what the doctors and social workers "regard as important or significant". In substance, as Professor Kennedy asserts(317) ibid., at p 90:
"The courts will be presented with a fait accompli. Those
who wish to challenge it will have what amounts to a near impossible task. They will have to persuade the court to reject, wholly or in part, the evidence of the 'experts', evidence that is often unanimous and which has all the trappings of expertise. It will be too late to argue that the answers may be wrong because the questions were wrong." Whatever may be the position in England, the approach of their Lordships is not consistent with the common law of Australia.
The law of the Northern Territory

33. So far I have dealt with the question of the common law rights of the parent to consent to a sterilisation procedure. In New South Wales(318) Children (Care and Protection) Act; Disability Services and Guardianship Act 1987 (N.S.W.) and South Australia(319) Mental Health Act Amendment Act 1985 (S.A.) the common law position in relation to children is altered by legislation. In the Northern Territory, s.21 of the Adult Guardianship Act 1988 (N.T.) requires that curial consent be obtained for the sterilisation of an intellectually disabled adult, but no specific legislation regulates the sterilisation of minors. Consequently, the lawfulness of a consent to the sterilisation of a minor in the Northern Territory depends upon the common law, subject to any general statutory provisions which are applicable to such cases.

34. Section 188 of the Criminal Code Act 1983 (N.T.) makes an unlawful assault an offence. Section 187 defines "assault" to mean, inter alia, the direct or indirect application of force to a person without his or her consent. But "assault" does not include "medical treatment ... reasonably needed". The removal of the uterus or ovaries of a female would also be an indictable offence under ss.181 and 186 of the Code unless it was an act or event authorised "in the exercise of a right granted or recognised by law"(320) Criminal Code, s.26(1)(a) or "subject to subsection (3), pursuant to authority, permission or licence lawfully granted"(321) Criminal Code, s.26(1)(d). Subsection (3) of s.26 provides that a person cannot authorise or permit another person to cause him or her grievous bodily harm "except in the case of medical treatment". Neither in terms nor in principle do these provisions make unlawful any consent to the sterilisation of a child which would be lawful at common law. Thus, it would be a "defence" to a charge brought under any of these provisions in respect of the sterilisation of a minor that the procedure was authorised by the common law. For the reasons I have already given, a consent given by the Family Court is also a "defence" to any such charge.
The question stated

35. I would answer the question stated to the Full Court by Nicholson C.J. as follows: Q.(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? A. Yes, if the circumstances are so compelling that the welfare of the child justifies the invasive procedure involved, there is no real possibility that in the future Marion will acquire the capacity and maturity to choose whether she should be sterilised, and in giving their consent the Applicants do not have any conflict of interest with her interests. Q.(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? A. (a) Yes if the Applicants are disqualified from giving consent.

(b) No.

(c) The Family Court may make a declaration as to lawfulness of a proposed procedure of sterilisation. Q.(3) Which (if any) of the steps referred to in (a), (b) or (c) of question 2 is required by law? A. Step (2)(a) is required if the parents are disqualified from giving their consent.

Orders

Appeal allowed.

Set aside the answers to the case stated given by the Full Court of the Family Court.

Answer the questions in the case stated as follows:
Question: (1) Can the Applicants (the respondents in this Court) 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?

Answer: No.

Question: (2) If no to quesxtion 1, doesx the Family Court of Australia have jurisdiction:
(a) to authorise the carrying out of such a procedure; or
(b) to approve the consent of the Applicants, as guardians of the said child, to the proposed procedure to make the procedure lawful?

Answer: (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.

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

Answer: The step referred to in question 2(a) is required by law.