The purpose of this paper is to consider the role law plays in the development and promotion of children’s rights. Law is, of course, but one strategy for achieving the goal of human rights — that is to treat people with equal concern and respect. A constructive legal framework which recognises human rights in a societal context is a good start. Where children are concerned the recognition of the rights of the child is tempered by the need to protect and nurture the maturing human being.

Law operates at a number of levels, the other two papers in this symposium have already considered the impact (or perceived impact) of children’s rights at an international level and within the criminal law. This paper is concerned with law at the domestic level and with the common law in particular. Although criticisms can be levelled at Australia’s compliance with the United Nations Convention on the Rights of the Child (CROC) generally it can be said that our laws are sensitive to the position of children in our community. However law is only one strategy, and generally an inadequate strategy, for the development and promotion of children’s rights. Public policy also plays a pivotal role but it alone is not enough either — what is required is adequate resourcing of a complex range of services and supports within an accountable multidisciplinary regime.

With these limitations in mind this paper explores the role of the common law — the judge-made law — with respect to children’s rights in one important area, that of the medical treatment of children and in particular the medical treatment of children with disabilities. It is in this area in the last 10 years or so that legal recognition has been given to children’s rights and the scope of those rights and the relationship of children to their families, to society and to the state have been expounded through the cases.

The starting point of course is the landmark High Court decision of Marion in 1992.¹ Prior to Marion’s case the scope of children’s rights and of parental responsibility in Australia were unclear. In the mid 1980’s the House of Lords in England had handed down a decision on this issue which was to have far reaching ramifications throughout the common law world². This case is one of those rare decisions which was brought to the attention of the courts on a matter of principle rather than to resolve a particular dispute. Mrs Victoria Gillick was concerned about a direction circulated to medical practionners by the local area health authority which related to contraceptive advice and treatment to children under 16 years of age. Mrs Gillick had a number of daughters, none of whom had approached their doctor seeking contraception. However she was outraged at the thought that health policy would permit a doctor to provide this advice and treatment, not only without her consent, but possibly even without her knowledge. This matter proceeded through the courts and ultimately the House of Lords had to determine the vexed question of the extent of parental authority and the contentious issue of children’s autonomy.

In the event the House of Lords found that parental responsibility is a diminishing power. When children are young parental authority is at its zenith — it is almost absolute - however as the child matures and develops that authority becomes more circumscribed until finally when the "child" reaches 18 it ceases altogether, at least as far as the law is concerned.³ But what happens in between? How does one determine what authority/responsibility a parent has and what rights a child has? The House of Lords considered this in a number of separate judgements. I am not going to take you through each of these individually. They have been the subject of many learned articles and papers⁴ and I’ll leave you to explore these more fully if you are interested. What the decision has come to be known for is the test of competence expounded by Lord Scarman. He held that a child is legally competent to consent to medical treatment when she or he

While the Gillick case concerned medical advice and treatment, the dicta in the case concerning parental authority and children’s rights were couched in more general terms and the case has been used in a broader context. Again to quote from Lord Scarman:

The extent to which the law in Australia treated children as "persons with capacities and rights" and the impact of "disability" on the "right-bearing capacity" of individuals were assessed by the High Court in Marion’s case.⁷

The facts of Marion’s case are now well known. Marion’s parents were concerned about the well being of their then 13 year old daughter who was severely and multiply disabled. Their concerns centred around issues of menstrual management and fertility control. The parents applied to the Supreme Court of the Northern Territory and then the Family Court of Australia for a declaration that they, as parents, could consent to a hysterectomy and ovariectomy on behalf of Marion. Failing that, they sought Court authorisation for these procedures. The evidence in the case was clear - Marion could not attend to her own personal hygiene nor could she care for a child. The parents believed that less intrusive forms of contraception were inappropriate. Hence the application for permission to perform a sterilisation.

Prior to this application, the Family Court had considered the issue of sterilisation of young girls by hysterectomy on four occasions.⁸ In these cases there was considerable judicial debate about the scope of parental responsibilities and the reach of judicial authority. The issue of who could consent to medical treatment of the child was crucial because in the absence of consent ( or medical emergency) medical treatment constitutes an assault and a doctor treating a patient without consent could be open to criminal charges or to a civil action for negligence or assault.⁹

In Marion’s case the critical issue which the High Court had to decide was who could consent to the medical treatment of a child. In the course of this decision there were a number of matters which the High Court had determine. These included:

• The scope of the welfare power of the Family Court;
• The extent of parental responsibilities;
• The meaning and scope of the rights of the child; and
• The impact of "disability" on the rights of the child

The first issue the High Court had to determine was a jurisdictional one - whether or not the Family Court had a general supervisory jurisdiction, a "welfare" power and what the scope of that power was. The Family Court was created in 1975 by the Family Law Act and its powers are circumscribed by that Act. While initially the Court was given power to determine matters of guardianship, custody, access and maintenance of children, it had no general welfare power. This created problems and in 1983 the Family Law Act 1975 (Cth) was amended to expand its powers to include such a supervisory jurisdiction. This was done by adding in the word "welfare" to section 64(1) (a) of the Act as it then was. However, this caused considerable confusion and legal argument. It had been the intention of the drafters of the reform to confer a general supervisory jurisdiction on the Court. This may appear to be a simple matter. A problem arose, however, because the meaning of the word "welfare" which was adopted as a matter of plain English did not necessarily have the same connotation as the terms parens patriae or wardship. It was almost 10 years before the matter was settled. It was not until 1992 in Marion’s case that the High Court finally held that the "welfare" jurisdiction was the same as the parens patriae jurisdiction of the Superior Courts of Record without the feudal trappings¹⁰ - the result is that the Family Court does have a general supervisory jurisdiciton. Today the source of this welfare power is found in section 67ZC of the Family Law Act 1975 (Cth).

In Marion’s case the High Court also had to consider the scope of this welfare power — whether it was limited by the scope of parental responsibility (that is, that the court could only order what a parents could authorise) or whether it went further permitting a court to authorise matters outside the scope of parental responsibility. The majority of the High Court held that this welfare power does indeed extended beyond the scope of parental authority and that it exists concurrently with both parental authority and children’s rights. In other words the Family Court can act where neither the parent nor the child can legally act and in addition it can review and override the decisions of parents and children with respect to the welfare of children. In all cases the Family Court must act in the "best interests" of the child.¹¹

So what is the nature and extent of parental responsibility with respect to medical treatment of their children? Simplistically parents do have the authority to consent to medical treatment on behalf of their children. Howeve,r that authority is limited by the nature of the medical treatment and the competence of the child. Marion’s case established that parents do not have the authority to consent to serious, irreversible medical treatment, like hysterectomy, unless it is for a "therapeutic" purpose. Furthermore, the dicta of most of the judges in this case implied that the decision was not limited to hysterectomy. Subsequent cases in the Family Court have clarified this and the assistance of the court has been sought in a variety of procedures including gender reassignement, bone-marrow harvesting and heart operations.¹² Marion’s case also established that parental authority only exists as long as, and to the extent to which, the child is incompetent to consent on her own behalf.

In considering when a child is competent to consent to medical treatment the High Court adopted the Gillick test of competence and rejected a fixed age of competence. Their Honours held that a child is capable of giving a valid consent to treatment when the child has sufficient intelligence and maturity to understand the nature and consequences of the medical treatment. The corollary of this is that once the child is herself competent, the parents no longer have the power to act. However, the picture is complicated because this test of competency is a developmental one and a clear consequence of applying such a test is that there will be a period of time where for some medical treatment the child will be competent and for other medical treatment the parent will be responsible. An important aspect of this decision is that the majority found that disability per se would not render a child incompetent. They noted

In reaching its decision in this case the High Court recognised that where medical treatment is concerned, responsibility will lie sometimes with parents, sometimes with their children and sometimes with the court.

The issue then arises - how does one ascertain who can legally make the medical treatment decision. The High Court held that the correct approach is a four step process. First, it is necessary to ascertain whether the child is legally competent. If the child is competent she can decide whether or not to have the treatment. If the child is not legally competent the next issue is whether the decision falls within the scope of parental authority. If it does, then the parents should make the medical treatment decision. If neither the parent nor the child has the power to give the consent, the Family Court must make the decision as to what is in the best interests of the child. In the words of the majority:

Therefore in determining what is in the best interests of the child the Court can only authorise hysterectomy as a last resort. All other less intrusive and less drastic steps must have been investigated and found wanting. The Court must take account of the developmental potential of the individual and must assess the potential decision-making capacity of the person as well as the present capacity to make decisions regarding medical treatment. Within this context the treatment approved should be "the least restrictive alternative". At the same time the High Court held that

In summary, the High Court in Marion’s case held that the decision to authorise a non-therapeutic sterilisation of a child is not within the ordinary scope of parental authority. In this context, contraceptive purposes were deemed not to be therapeutic purposes¹⁶. The Court reached this conclusion on the basis that where serious, irreversible treatment is concerned there is the very real danger of a wrong decision. This wrong decision could be either with respect to the child’s present or future competency, or as in the question of what is in the best interests of the child who cannot consent. Given the grave risk of a wrong decision, the High Court found that the appropriate decision maker was the Family Court.

Marion’s case is a landmark decision recognising as it does the human rights of children and delimiting both the scope of those rights and the scope of parental authority. On the specific issue of the sterilisation of children with disabilities, and indeed with respect to the human rights of people with disabilities, the High Court decision in Marion’s case seemed to provide an appropriate balance between respecting the individual autonomy of the child and her right to bodily integrity with the need for flexibility and access to medical treatment to ensure her best interests. It seemed to strike the right balance between promoting rights and protection.

In reaching its decision the High Court in Marion were cognisant of developments in the common law world. The majority of the High Court eschewed the English approach of placing decision making with the medical profession. It also seems to address the limitations of the Canadian Supreme Court in Re Eve which result from a total prohibition on non-therapeutic sterilisation in the absence of the informed consent of the person concerned. Considerations of cost and delay in court decision making were weighed in the balance and the protection of rights was found to outweigh the privilege of private decision making. The Family Court has subsequently developed rules for fast tracking medical treatment cases in an effort to address these considerations.

Shortly after the High Court handed down its decision the Family Court was called on to consider the actual application for authorisation of sterilisation in the Marion case. In Re Marion (No 2)¹⁷ the Chief Justice of the Family Court affirmed that sterilisation is a step of last resort¹⁸. His Honour went on to set out factors which are relevant to determining whether a particular procedure is in the best interests of the child and those factors are:

1. The particular condition of the child which requires the treatment.
2. The nature of the proposed treatment.
3. The reasons for the proposed treatment.
4. The available, alternate treatments.
5. The desirability and effect of authorising the proposed treatment rather than the available alternatives.
6. The physical effects of the child and the psychological and social implications for the child of both authorising the proposed treatment and not authorising the treatment.
7. The nature and degree of any risk to the child of either authorising or not authorising the proposed treatment.
8. Any views expressed by the parents, other carers or the child about the proposed treatment and the alternative treatments.¹⁹

While recognising that the views of the parents/carers are a relevant consideration in the determination of these applications, His Honour followed the lead of the High Court and made it clear that the decision could not be made to suit the convenience of the carers. He stated that

This case provides a good illustration of the complexities of decision-making in this area. Detailed evidence was lead to establish that not only was an hysterectomy appropriate in this case, but also that an ovariectomy was called for. The critical evidence was that for Marion this latter procedure was the "least restrictive alternative" and was the "step of last resort" in the sense referred to by the High Court. In addition to her other disabilities, Marion was an epileptic. There was the evidence that hormonal fluctuations exacerbated her epilepsy which was uncontrollable. In reaching his decision as to what was in Marion’s best interests, the Chief Justice’s prime concern was that in this case the ovariectomy was in fact for therapeutic purposes. While he acknowledged the parents’ concern about contraception he set that to one side as it could not be a deciding factor. In considering the appropriateness of both the ovariectomy and the hysterectomy, His Honour took account of the advantages of the procedures and the medical consequences of the procedures including the need for hormone replacement therapy. The best interests of the child were founded on therapeutic grounds — the procedures were necessary to minimise the potential for further neurological damage resulting from the epilepsy.

The result in this case turned on the finding that the proposed sterilisaiton was therapeutic in nature. As His Honour acknowledged:

We can see from this decision and from the judgement in the High Court decision that the therapeutic/non-therapeutic distinction plays a critical role not only in determining the ambit of parental responsibility but also in assessing the best interests of the child. This distinction has been important in all the subsequent decisions of the Family Court with respect to the medical treatment of children.

Two other cases will illustrate the limitations of the therapeutic/non-therapeutic distinction and the shortcomings of law as a tool for the effective promotion of rights.

The first case, Re L and M²²contrasts nicely with Marion (No2) as it also concerns a profoundly disabled young woman. In this case "Sarah" lived in a group home and had done so from a vary young age. She was doubly incontinent and had very limited motor functions and poor communication. Warnick J refused to authorise the sterilisation for which he could find no therapeutic justification, although interestingly, as in so many of these cases, Sarah was subject to epileptic fits. He found that sterilisation would not in any way improve the quality of Sarah’s life nor would it increase her ability to participate in the community. He rejected prevention of pregnancy as a justification for sterilisation as the evidence was clear that pregnancy would only result from sexual assault. He also rejected arguments relating to menstrual management. In a strongly worded decision he stated:

This case can be contrasted to the second: P v P²⁴. I am not concerned here with the constitutional issues which went to the High Court. That would be the subject of another paper. Rather I want to focus on the application of the principles set out in Marion’s case to the particular facts of P v P. In this case the subject of the application was Lessli, a 17 year old girl, who is described by Justice Moore in the original decision as "intellectually disabled, the level of which has been assessed as low-moderate, and she suffers from epilepsy."²⁵ The application was brought by Lessli’s mother and supported by her father. The expressed purpose of the proposed medical intervention, hysterectomy, was to eliminate menstruation and to prevent pregnancy.

The evidence in this case established that while Lessli required fairly close supervision to perform the tasks of daily life, she was able to do so independently with prompting. She was for example able to dress and bathe herself under supervision and she was fully toilet trained. If directed to do so she could perform simple household tasks including food preparation. However she had little concept of time or of road safety. At the time of the application Lessli attended a special school and lived in a group home. Spending weekends and holidays with her mother. However once she turned 18 she would be living with her mother full time.

There was conflicting evidence before Justice Moore of the effect of menstruation on Lessli. The evidence from the carers at her school and in the group home was that it was not out of the ordinary, provided the school routine was maintained. Lessli continued to require constant supervision and was able to attend to her personal hygiene provided she was prompted to bathe and change her pads. On the other hand, Mrs P reported emotional disturbance and behaviour problems associated with menstruation and some problems with menstrual management.

In assessing whether hysterectomy was in Lessli’s best interests Justice Moore followed the approach set out in Marion’s case and took account of the difficulties Mrs P faced in caring for Lessli. She quite rightly in my opinion rejected any arguments based on a "right to reproduce" and focused instead on the underlying fundamental right to bodily integrity. In considering the reasons given for the proposed hysterectomy Justice Moore held that

In relation to the second reason for the sterilisation, the prevention of pregnancy Her Honour found that a hysterectomy in this case could not be said to be a "step of last resort". Apart from an assessment of the relative merits of the different contraceptive measures available, Justice Moore took account of Lessli’s need for contraception and the consequences for her if she did not receive contraceptive treatment. The reason given for contraception was not to enable Lessli to have the opportunity to develop a sexual relationship free of the possibility of pregnancy. Rather it was to protect her from the possible consequence of a sexual assault. The irony of this is that the evidence indicated that Lessli would not have the capacity to consent to sexual relations and so any sexual intercourse would constitute a criminal assault. There was, in fact, evidence that on a previous occasion Lessli had been viciously assaulted while in a "safe" environment. Having considered all the evidence Justice Moore concluded that the risk of sexual assault was not a real risk and certainly not sufficient to justify a hysterectomy. Apart from concerns about the futility of sterilisation as a means of protection from sexual abuse, Her Honour was concerned with the requirement that the sterilisation be a step of last resort. She felt there were other less restrictive options still to be explored.

On appeal the Full Court of the Family Court overturned Justice Moore’s decision and indeed went beyond earlier dicta in Marion’s case. In apparently upholding the notion of sterilisation as a step of last resort "in the context of the child’s needs and capacities", the Full Court rejected the possibility of leaving "disability" out of the equation and assessing the child with disabilities as you would with any other child. In considering whether sterilisation was a last resort, Justice Moore at first instance had considered the appropriateness of other contraceptive measures for a person with epilepsy but without intellectual disability. This comparison, which is used in other fields (and I would argue implicit in the decision in Marion’s case) was dismissed by the Full Court. Although the fundamental human right underlying Marion’s case was the right to bodily integrity, the effect of the Full Court decision in P v P is that this right is less important where a person has no insight into her own sexuality and is deemed incapable of developing a meaningful sexual relationship.

While acknowledging that in this case the issue of menstrual management was only one factor which on its own could not justify sterilisation, the Full Court gave considerable weight to the wishes and needs of the mother and again the fact that Lessli had little understanding of reproduction and the functioning of her body seems to have been influential.²⁷

There was no question in this case that the sterilisation was for a therapeutic purpose. However the procedure was authorised "in the best interests" of the young woman primarily to protect Lessli from one of the consequences of a criminal assault and to remove difficulties for her carer, in this case her mother, created by menstruation. On the facts of this case, the protections embodied in the High Court decision in Marion appear to have been rendered meaningless in the context of a comparatively mildly intellectually disabled young woman who seemed to be relatively capable of managing her own personal hygiene.

This last case, in particular, illustrates the limitations of the law as an effective mechanism for the promotion and protection of children’s rights. The factor which distinguishes Lessli’s situation from Sarah’s is not the level of care required - both required a high level of supervision; neither were believed to be capable of forming a consensual sexual relationship - but who was providing the care. Where the care was provided in an institutional setting sterilisation was not approved. Where the carer was a close family member it was. While one can be sympathetic to the needs of the wider family (and those needs are very great) the problems facing families caring for people with disabilities are not really resolved by medical interventions such as sterilisation. What is required is appropriate services and support including respite care, personal assistance, supported residential provision outside the family, day programs and so on. The role of law in addressing these needs is of course very limited.

Implicit in these judgements, and often explicit as well, are a number of assumptions about intellectual disability and menstruation. In the report they wrote for the Human Rights and Equal Opportunity Commission, Susan Brady and Sonia Grover question these assumptions and, drawing on extensive medical, public health and social research, they provide strong evidence that sterilisation could rarely be the option of last resort.²⁸ In particular they consider some of the assumptions which have justified sterilisation in a legal context. For example, in P v P sterilisation was justified on the basis of mood swings and behaviour changes associated with menstruation and for reasons of menstrual management. However, Brady and Grover refer to research from the Key Centre for Women’s Health at Melbourne University which casts doubt on the connection between mood swings and menstruation and which shows that in many cases these do not improve after hysterectomy.²⁹

Another factor which influenced the court in P v P was the risk of pregnancy as a result of sexual abuse. There are countless reports which now show that girls and women with disabilities are very vulnerable to sexual assault.³⁰ However the strategies needed to address this problem is not the wholesale sterilisation of the victims but better educational and protective behaviour programs³¹ and better monitoring of the various environments in which people with disabilities find themselves. In fact Brady and Grover refer to evidence that "suggests sterilisation may lead to a cycle of neglect and increase the likelihood that sexual abuse will go undetected"³². A very strong message which comes from their research, is that a whole range of strategies is required to adequately address these issues, and that in most cases surgical sterilisation has a very small role to play.

Another significant problem with relying on law to promote rights is that tests developed to facilitate the application of law quite often do just the opposite. In the context of the particular problem under consideration, it is the line between therapeutic and non-therapeutic medical treatment which seemed to offer so much but in practice has created confusion. For example, contraception is sometimes viewed as a therapeutic treatment, and sometimes as non-therapeutic. Prevention of a pregnancy which could be caused by a criminal sexual assault has been characterised as therapeutic, although the Family Law Council were insistent that it never could be. Menstruation problems and issues relating to menstrual management may sometimes result in a "therapeutic" sterilisation. Equally, the existence of menstrual management programs may provide evidence that sterilisations for these reasons could never be therapeutic. In the final analysis, it would seem that legal distinctions are fertile grounds for lawyers games, but do not always provide clarity in the articulation of a right.

One of the much publicised findings of the Brady/Grover report is that while only 17 cases had come to the Family Court after Marion’s case, in that period more than 1,000 sterilisation procedures had been carried out on girls with intellectual disabilities without court sanction.³³ As the incidence of disease of the reproductive organs is rare in girls and young women, the only conclusion one can draw is that the vast majority of sterilisations are being conducted despite the High Court ruling. Other research by Susan Brady has shown that when parents are provided with information and the opportunity to explore other options they rarely proceed with the application for sterilisation in the Family Court. She concludes that this is because "the families and children involved received services such as respite care, home-help, and needs-based developmental programs, and the child retained a functioning organ and her bodily integrity."³⁴

The aim of this paper was to consider the role of law in the development and promotion of children’s rights. While it is clear that there is a place for law in the recognition and protection of rights law on its own is a clumsy and inadequate tool for ensuring children are treated with equal concern and respect. Marion’s case was a landmark case for children’s rights and one which upheld the fundamental right of children with disabilities to be treated as human beings with the same right to bodily integrity enjoyed by their fellow human beings. However, because the principles set out in that decision have often been ignored in practice, it becomes necessary to question how effective the law actually is in resolving problems and in promoting rights.

Blackwood, J (1991)"Sterilisation of the Intellectually Disabled: The Need for Legislative Reform" 5 Australian Journal of Family Law 138

Brady, S and Grover, S (1997) The Sterilisation of Girls and Young Women in Australia: A Legal, Medical and Social Context A Report Commissioned by the Federal Disability Discrimination Commissioner, HREOC

Family Law Council (1994) Sterilisation and other Meidcal Procedures on Children — A Report to the Attorney General, AGPS Canberra

Graycar, R (1994) "Sterilisation of Young Women with Disabilities: Towards a New Regulatory Framework" 1 Australian Journal of Human Rights 380

Parkinson, P (1992) "Children’s Rights and Doctor’s Immunities" 6 Australian Journal of Family Law101

Jones, M and Marks, LAB (1994) "The Dynamic Developmental Model of the Rights of the Child: A Feminist Approach to Rights and Sterilisation" 2 International Journal of Children’s Rights 265

Jones, M and Marks, LAB (1996) " Mediating Rights: Children, Parents and the State" 2 Australian Journal of Human Rights 313

Jones, M and Marks, LAB (1997) "Female and Disabled: A Human Rights Perspective on Law and Medicine" in K Petersen (ed) Intersections: Women on Law, Medicine and Technology Aldershot 49

Nicholson, A, Harrison, M and Sandor, D (1996) "The Role of the Family Court in Medical Procedure Cases" 2 Australian Journal of Human Rights 242

O’Neill, N (1996) "Sterilisation of Children with Intellectual Disabilities" 2 Australian Journal of Human Rights 262

Petersen, K (1996) "Private Decisions and Public Scrutiny: Sterilisation and Minors in Australia and England" in S McLean (ed) Contemporary Issues in Law, Medicine and Ethics Aldershot: Dartmouth

Rhoades, H (1995) "Intellectual Disability and Sterilisation — An Inevitable Connection?" 9 Australian Journal of Family Law 234

Skene, L (1998) Law and Medical Practice : Rights, Duties, Claims and Defences Butterworths esp Chs 3, 4 & 5

Tait, D, Carney, T and Deane, K (1994) "Legal Regulation of Sterilisation: The Role of Guardianship Tribunals in NSW and Victoria" 8 Australian Journal of Family Law 141

Notes:

¹ Secretary, Department of Health and Community Services (NT) v JWB & SMB (1992) 175 CLR 218

² Gillick v West Norfolk and Wisbech AHA [1986] AC 112

³ see for example Lord Scarman at 183 —184. It is worth noting the irony that at a time when the Courts are recognising the autonomy of the mature minor the legislature is forcing responsibilities for mature minors and for young adults back onto their parents passing laws which limit access to public assistance and which render parents responsible for the criminal acts of their children.

⁴ Cf Morgan, JM (1986) "Controlling Minor’s Fertility" 12 Monash University Law Review 161; Bainham, A (1992) "the Judge and the Competent Minor" 108 Law Quarterly Review 194; Devereux, J (1991) "The Capacity of a Child in Australia to Consent to Medical treatment — Gillick Revisited? 11 Oxford Journal of Legal Studies 283; Wilson, R (1986) "The Gillick Crusade" 8 Australian Journal of Forensic Science 8

⁵ [1986] AC at 189

⁶ ibid 183 -184

⁸ Re Jane (1988) 94 Federal LR 1; Re Elizabeth (1989) 13 Fam LR 47; Re a Teenager (1988) 94 Federal LR 181; Attorney-General(QLD) v Parents (In re S) (1989) 98 Federal LR 41

⁹ For a consideration of the legal requirement of consent see L. Skene (1998) Law and Medical Practive: Rights, Duties, Claims and Defences Butterworths

¹⁰Wardship was very complex jurisdiction, most importantly it created an "all or nothing" situation. Once a wardship order was made, the parents were deprived of all authority and theoretically the court had to make all decisions concerning the child.

¹¹ Family Law Act 1975 (Cth) s 67ZC(2)

¹² cf Re A 16 Fam LR 715 — gender reassignment; In the marriage of GWW and CMW (1997) 21 Fam LR 612 — bone marrow transplant

¹³ 1992 CLR 239

¹⁴ ibid

¹⁵ CLR 259

¹⁶ ibid

¹⁷ (1992) 17 Fam LR 336

¹⁸ at 350

¹⁹ at 351 - 352

²⁰ 352

²¹ 355

²² (1993) 17 Fam LR 357

²³ Re L and M (1993) 17 Fam LR 357, 374

²⁴19 Fam LR 1

²⁵ Unreported Decision No SY4034 of 1989 at 1

²⁶ ibid 48

²⁷ "Finally, we would point out that while it is one thing for a woman who has an understanding of her bodily functions and the reason for menstruation to wish to continue with it regardless of any reproductive intent, we think it quite another to require a child like Lessli, who finds the process distressing and has no understanding of its purpose to do so, particularly when, as here there are other factors to suggest sterilisation." 19 Fam LR, 23

²⁸ Brady, S and Grover, S (1997) The Sterilisation of Girls and Young Women in Australia: A Legal, Medical and Social Context A Report Commissioned by the Federal Disability Discrimination Commissioner, HREOC.

²⁹ Ibid 30 -31

³⁰ See for example Chenoweth, L (1999) "A Long Road to Justice: Sexual Abuse of People with Disabilities" in M Jones and LAB Marks (eds) Disability, Divers-ability and Legal Change Martinuus Nijhoff

³¹ Brady and Grover 32 -33

³² ibid 32. See also the Report of the Family Law Council (1994) Sterilisation and other Meidcal Procedures on Children — A Report to the Attorney General, AGPS Canberra

³³ In all but one of the cases the Family Court has sanctioned the sterilisation.

³⁴ Brady, S (1996) "Invasive and Irreversible" 21 (4) Alternative Law Journal