Gender Identity Dysphoria– Legal Issues:
“A debate about being child centred or hearing the child’s voice”
Paper presented at the 6th World Congress on Family Law and Children’s Rights
Sydney Convention and Exhibition Centre, Darling Harbour, 19 March 2013
Roderick Best, Executive Director, Vulnerable Children and Families
Department of Family and Community Services, Community Services1 2
Introduction
NSW has identified in its legislation principles3 of care and protection which the State
considers to be fundamental to any action impacting on a child.4 These are to look to
the child’s safety, welfare and well-being and seek the child’s participation. Where
new situations arise for children the question must be answered as to how these
principles are to apply. In this paper I want to look at how the courts have applied
these principles when dealing with new ways of responding to a core element of a
child’s identity – gender. This paper looks at the interplay between the welfare of the
child and the participation of the child in deciding what should occur.
There is no disagreement that gender5 is fundamental to an individual’s identity. In
exceptional instances, an individual’s personal sense of gender does not correspond
with their biological sex. Gender Identity Dysphoria (GID) is used to describe this
situation where it results in an individual having a persistent and profound discomfort
with their biological sex and a strong identification with the gender of the opposite
sex as manifested by unrelenting cross gender thought and behaviour. A clinic has
now existed in Australia to respond to GID in children for just over a decade.
Much international debate has arisen as to the aetiology, basis for the diagnosis and
treatment of GID in children. In Australia, one particular point of contention is who
provides consent to undertake sex reassignment procedures for children.
Gender Identity Dysphoria
Defining features
Deciding whether a child has GID can be difficult because gender is fluid and crossgender profiles may change over time for a variety of reasons.6 While extreme cases
1
The comments in this Paper are those of the author and are not, nor do they necessarily reflect, the views of the
State of NSW, the Minister for Family and Community Services or the Department of Family and Community
Services.
2
I thank Jane Smith for assistance in preparing this paper. All mistakes, are mine.
3
Children and Young Persons (Care and Protection) Act 1998 ss 9(1), 10
4
A child refers to any person under the age of 18 years and so includes reference to a ‘young person’.
5
Although gender is often used interchangeably with the term ‘sex’, in this paper I have used the term ‘gender’
to describe how a person presents socially and culturally and used the term ‘sex’ to refer to biological
differences as determined by such things as chromosomes, hormonal profiles or internal and external sex organs.
6
Cohen-Kettenis, P T & Pfafflin F, Transgenderism and Intersexuality in Childhood and Adolescence: Making
Choices (2003), Sage Publications, Inc., 106.
1
are not difficult to identify, children present anywhere from ‘typical for boys’ to ‘typical
for girls’ on various dimensions.7
According to the DSM-IV, TR,8 there are 2 components of GID, both of which must
be present to make the determination. Firstly, there must be evidence of a strong
and persistent desire to be of the other sex. In children this is manifested by 4 or
more of the following:





Repeatedly stating a desire to be, or insisting that he or she is, the other sex
In boys, a preference for cross-dressing or simulating female attire; in girls, an
insistence on wearing only stereotypical masculine clothing
Strong and persistent preferences for cross-sex roles in make believe play or
persistent fantasies of being the other sex
Intense desire to participate in the stereotypical games and pastimes of the
other sex,
Strong preference for playmates of the other sex.
Secondly, there must be evidence of persistent discomfort about one’s assigned sex
or a sense of inappropriateness in the gender role of that sex. In children, the
disturbance is manifested by any of the following:
In boys:




Assertion that his penis or testes are disgusting or will disappear, or
Assertion that it would be better not to have a penis, or
Aversion toward rough-and-tumble play, or
Rejection of male stereotypical toys, games, and activities.
In girls:




Rejection of urinating in a sitting position
Assertion that she has or will grow a penis, or
Assertion that she does not want to grow breasts or menstruate, or
Marked aversion toward stereotypical feminine clothing.
The individual must be exhibiting clinically significant distress or impairment in social,
occupational, or other important areas of functioning. The diagnosis is not made if
the individual has a concurrent intersex condition.9
It has been shown that children with GID also present with co-morbid features
including separation anxiety, depression and behavioural difficulties.10 Suicidal
7
Ibid. In classifying the diagnosis rather than the child, there is much debate about whether GID should be
reported as a disorder or just a ‘normal’ variant of gendered behaviour. See: Zucker, K. J, ‘Gender Identity
Disorder’, In Behavioural and Emotional Disorders in Adolescents: Nature, Assessment and Treatment (eds
Wolfe, D A & Mash, E J ) (2006) The Guildford Press, New York, 535-562, 553-554. Consistent with the
leading Australian case laws referred to below this paper proceeds on the basis that GID is one aspect of
gendered beghaviour, rather than it being a disorder. This is contrary to DSM-IV TR.
8
American Psychiatric Association, Diagnostic and statistical manual of mental disorders, Fourth Edition, Text
Revision (2000), Washington, American Psychiatric Publishing, 576-582.
9
For example, partial androgen insensitivity syndrome or congenital adrenal hyperplasia.
2
ideation, self-harm and attempts at suicide have been reported. In a survey of the
first 124 cases referred to the Gender Identity Development Service at the Portman
Clinic in London, the most common associated features present in the children who
were referred included: relationship difficulties with parents or carers; relationship
difficulties with peers; depression/misery; family mental health problems; family
physical health problems; being the victim of harassment or persecution, and social
sensitivity.11
Prevalence
GID can appear in early infancy with a variable degree of severity. 12 Onset of crossgender interests and activities can usually be noticed when the child is between ages
2 and 4 years, although some parents report that their child always had cross-gender
interests.13 Only a very small number of children diagnosed with GID will continue to
have symptoms that meet the criteria for GID in adolescence or adulthood, 14
however it has been reported that GID in children that intensifies with the onset of
puberty rarely subsides.15 The more likely outcome is that children who do not have
persistent GID into adolescent and adulthood will eventually identify as gay or
lesbian or bisexual. One longitudinal study found that from a group of 66 males in the
original ‘feminine boy’ group, two-thirds were re-interviewed in adolescence or young
adulthood, with three-quarters of them found to be gay or bi-sexual and only 1 male
from the study having a transsexual outcome.16
The prevalence of GID in childhood and adolescence has been characterised as a
‘rare phenomenon’17 and reported to be below 1 per cent. More male children have
been diagnosed with GID than female children. 18
Over the past 10 years, the number of children with GID referred to Australia’s only
GID clinic, at the Royal Children’s Hospital Melbourne (‘RCHM’),19 has risen
steadily.20 During 2003 to 2011, 39 children and adolescents were referred to the
Coates, S & Spector Person, E, ‘Extreme boyhood femininity: isolated behaviour or pervasive disorder?’
Journal of the American Academy of Child and Adolescent Psychiatry (1985) 24:702-709. High levels of
psychiatric comorbidity in gender dysphoric adolescents might also be expected secondary to the distress
associated with GID, as the incongruence between experienced and desired gender becomes more salient. See:
Vries, et al, ‘Psychiatric comorbidity in gender dysphoric adolescents, The Journal of Child Psychology and
Psychiatry (2011) 52(11)” 1195-202.
11
Di Ceglie, D, ‘Gender identity disorder in young people’, Advances in Psychiatric Treatment (2000) 6: 458466, 461.
12
Korte, A et al., ‘Gender Identity Disorders in Childhood and Adolescence’, Deutsches Arzteblatt International
(2008) 105(48): 834 – 841, 834.
13
Above n 8, 579.
14
Above n 8, 579.
15
Zucker, K J, ‘The DSM diagnostic criteria for gender identity disorder in children’, ArchSex Behav (2010)
39(2): 477-498.
16
Green, R, et al, ‘Specific cross-gender behaviour in boyhood and later homosexual orientation’, British
Journal of Psychiatry (1987) 151: 84-88.
17
Meyer-Bahlburg, H F L, ‘Gender identity disorder of childhood: Introduction’, Journal of the American
Academy of Child Psychiatry (1985) 24, 681-683.
18
Above n 12, 834.
19
The Clinic at RCHM is the only specialist clinic for child and adolescent GID in Australia. Specialist clinics
have also been established in Canada, the United States, the UK and several European countries.
20
Hewitt, J K, et al, ‘Hormone treatment of gender identity disorder in a cohort of children and adolescents,
MJA (2012) 196(9): 578-581, 578.
10
3
service and assessed, with 1 child being referred in 2003 and 8 referred in 2011. It is
believed that that the increase in referrals is due to improved awareness of a medical
service for children with GID rather than any increase in the incidence of GID.21
Aetiology
No single cause has yet been identified with any certainty for why some children
have GID.22 Some possible causes suggested include hormonal influences on the
brain during foetal development,23 parent characteristics such as psychopathology,24
general behavioural difficulties in the child,25 the child’s psychological make-up, life
events or a combination of predisposing influences.26
Treatment
Given that symptoms of GID at pre-pubertal ages decrease or even disappear in a
high percentage of children (estimates range from 80 to 95 per cent), it is generally
accepted that any medical intervention in early childhood would seem premature and
inappropriate.27 As noted above, GID continuing into early puberty appears to
establish that GID will be highly persistent, which is why medical intervention is
considered at the adolescent/early or post pubertal stage.
International consensus guidelines for hormonal treatment of adolescents with GID
have been published28 as have standards of care for children and adolescents with
GID.29 Information supplied by the GID clinic at the RCHM states that appropriate
care and treatment of children with GID and its related issues requires a
comprehensive assessment and a multidisciplinary approach to support and
management.30
The general approach to the management of GID in children can be categorised into
4 stages. During management, the child receives continual psychological support
and physical monitoring before progressing to each stage of intervention.
21
Ibid, 580.
Above n 11, 461.
23
Above n 11, 461.
24
Above n 7, 552.
25
Zucker, K J, ‘Gender identity development and issues’, Child and Adolescent Psychiatric Clinics of North
America (2004) 13(3): 551-568.
26
Ibid.
27
Cohen-Kettenis, P T et al., ‘The treatment of adolescent transsexuals: Changing insights,’ Journal of Sexual
Medicine (2008) 5: 1892–1897, 1895.
28
Hembree WC, et al., ‘Endocrine treatment of transsexual persons: an Endocrine Society Clinical Practice
Guideline’ J Clin Endocrinal Metab (2009) 94:3132-3154.
29
The World Professional Association for Transfer Health, Standards of Care for the Health of Transsexual,
Transgender, and Gender Nonconforming People 7 th Version (2012).
30
See Gender Identity Service, Royal Children’s Hospital Melbourne:
<http://ww2.rch.org.au/outpatient/directory/index.cfm?fuseaction=home.full&id=127>.
22
4
The first stage of the process for children and adolescents involves a therapeutic
exploration.31 If the symptoms of GID persist and are indicative of an evolution to
transsexualism, then physical interventions are considered with caution.
The second stage entails wholly reversible intervention. Hypothalamic blockers are
used to suppress the production of oestrogens or testosterone and produce a state
of biological neutrality.32 Hormonal treatment to suppress puberty is aimed to reduce
the psychological distress related to unwanted pubertal developments in the
biological sex and allows additional time for support of the adolescent during the
process of either resolving GID or coping with its persistence. Such hormonal
treatment can also prevent irreversible secondary sex changes which may be difficult
to address later on.33
The third stage involves partially reversible interventions such as hormonal treatment
that masculinises or feminises the body.
The fourth stage includes irreversible interventions such as surgical sex
reassignment procedures.
While accepting that further research is required, particularly in understanding what
might be the best physical interventions, clinicians in Australia follow the 6 guidelines
concerning the treatment of adolescent transsexuals that are referred to in the
Endocrine Society’s Clinical Guidelines.34 These guidelines have been endorsed by
the Australasian Paediatric Endocrine Group:
1. We recommend that adolescents who fulfil eligibility and readiness
criteria for gender reassignment initially undergo treatment to suppress
pubertal development
2. We recommend that suppression of pubertal hormones start when girls
and boys first exhibit physical changes of puberty (confirmed by
pubertal levels of estradiol and testosterone, respectively) but no
earlier than Tanner stages 2–335
3. We recommend that GnRH analogues be used to achieve suppression
of pubertal hormones
4. We suggest that pubertal development of the desired opposite sex be
initiated at about the age of 16 years, using a gradually increasing dose
schedule of cross-sex steroids
31
Above n 11, 464. This ranges from individual to family and group therapy which aims, amongst other matters,
to foster recognition and non-judgmental acceptance of gender identity issues and to ameliorate associated
behavioural, emotional and relationship difficulties.
32
Above n 11, 464.
33
Above n 20, 578.
34
Above n 28.
35
Pubertal maturation can be described in terms of sequence, timing and tempo (puberty consists of a series of
predictable events, and the sequence of changes in secondary sexual characteristics has been categorised by
several groups). The staging system utilised most frequently is commonly referred to as the Tanner stages.
5
5. We recommend referring hormone-treated adolescents for surgery
when 1) the real-life experience (RLE) has resulted in a satisfactory
social role change; 2) the individual is satisfied about the hormonal
effects; and 3) the individual desires definitive surgical changes
6. We suggest deferring surgery until the individual is at least 18 years
old.
In relation to surgical intervention, these are consistent with guidance from the UK
Royal College of Psychiatrists which also does not recommend that surgical
intervention prior to adulthood, or at least prior to real-life experience for at least 2
years of living in the gender with which they identify.36
The rationale behind requiring real-life experience is to prepare the person as well as
possible to make a fully informed decision about irreversible surgery. 37 Since
changing one's gender presentation has immediate profound personal and social
consequences, the decision to do so should be preceded by an awareness of what
all of the predictable consequences are likely to be and assists all parties in working
out how to proceed. While, as noted below, the long term psychological and health
outcomes of cross-sex hormone treatment for children are unknown, as is the rate of
‘regret’ with reversal of gender identity, the real-life experience can assist in testing a
person’s resolve, including feelings about the social transformation and coping with
the response of others.38
Outcomes of treatment and the need for further research
A recent US study of children and adolescents with GID found that psychological
functioning improves with medical intervention and that the patient’s psychiatric
symptoms might be secondary to a medical incongruence between mind and body,
which is not primarily psychiatric.39 It was identified that further research was
required in relation to psychological functioning of patients once they had achieved a
physical appearance similar to (or indistinguishable from) their affirmed gender peers
after early pubertal suppression and cross-sex hormone therapy.40
In the Australian study conducted by the GID clinic at the RCHM, of 21 adolescents
who were assessed for consideration for hormone treatment between 2003 and
2011, 4 experienced a resolution of gender identity dysphoria or acceptance of
gender variance with ongoing psychological counselling. Seventeen had profound
GID with increased distress following the onset of puberty and were considered
eligible for hormone treatment. Of this group of 17, 11 had made or were planning to
make an application to the Family Court for approval of hormone treatment. Seven
Royal College of Psychiatrists, Gender Identity Disorders in Children and Adolescents – Guidance for
Management, Council Report CR63 (1998) London: Royal College of Psychiatrists, 6.
37
Bocktin, W, ‘Psychotherapy and the real-life experience: From gender dichotomy to gender diversity,
Sexologies (2008) 7(4): 211-224, 211.
38
Above n 29, 9.
39
Spack, et al., ‘Children and Adolescents With Gender Identity Disorder Referred to a Pediatric Medical
Center’, Pediatrics (2012) 129:418-425.
40
Ibid, 423.
36
6
young people commenced court-approved hormone treatment.41 A follow up of the
young people found that none had stopped hormone treatment. It was acknowledged
in this study that the long term psychological and health outcomes following
hormonal treatment of children and adolescents with GID are currently unknown. 42
A follow-up study of Dutch adolescents that began cross-sex hormone therapy
between 16 to 18 years of age found that none had GID and, 1 to 5 years after sex
reassignment surgery were both psychologically and socially ‘not very different’ from
their peers.43
A retrospective, descriptive Dutch study of 10,152 transsexual patients who received
cross-sex hormone treatment from a knowledgeable physician found that it was an
acceptably safe practice in the short and medium term. While there were side
effects, as with any pharmaceutical therapy, mortality was not higher than a
comparison group of age and gender-adjusted Dutch citizens.44
There is however a lack of evidence as to long term side effects of cross-sex
hormone treatment. Some have gone so far as to argue that because the risks are
partially unpredictable it is not possible to give informed consent to engaging in
hormonal suppression of puberty and cross-sex hormones.45
As well as the consequences of intervention, which on a long term basis are largely
unknown, the consequences of not treating a child or adolescent with GID also
needs to be considered. As noted above, children with GID often present with
anxiety, depression and behavioural problems. These children are more likely to be
unhappy, lonely, isolated and stigmatised by peers. The distress and negative
psychological implications of non-treatment has certainly been a factor taken into
account by Australian courts when determining whether to approve the
commencement of hormone treatment for adolescents diagnosed with GID.
The Australian approach to consent
Medical treatment for children generally
For understanding what is required prior to any medical treatment proceeding, a
statement from Mr Justice Cardoza, one of the world’s great common law judges,
made almost 100 years ago deserves repeating:
‘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…’46
41
As far as is known by the GID clinic at RCHM, these 7 children represent the entire population of children
receiving puberty suppression and cross-gender hormone treatment for GID in Australia. There was 1 adolescent
who purchased oestrogen independently overseas without court approval. The number of adolescents that
purchase hormones through overseas internet sites cannot be accounted for.
42
Above n 18, 580.
43
Above n 27, 1893.
44
Gooren, L J et al., ‘Long term treatment of transsexuals with cross-sex hormones: Extensive personal
experience’, Journal of Clinical Endocrinology and Metabolism (2008), 93(1), 19–25.
45
Above n 27, 1896.
46
Schloendorff v Society of New York Hospital (1914) 105 NE 92 at 93
7
This general statement applicable to adults must be qualified when applied to
children by considering both capacity to make the determination and ensuring the
welfare of the child.
On capacity, Australian law is:
‘a minor is capable of giving informed consent when he or she achieves a
sufficient understanding and intelligence to enable him or her to fully understand
what is proposed.’47
This test adopts one of the majority decisions (that of Lord Scarman) in the English
House of Lords decision of Gillick v West Norfolk and Wisbech Area Health
Authority.48 It should be noted that this test differs from that of determining adult
capacity to consent to their own medical treatment, because the adult need only
establish a capacity to make the decision, rather than also establishing an
understanding of the consequences of what is proposed.49 The child must have not
just a capacity to make the decision but also an understanding of what is proposed.
In NSW, this common law test is supplemented by three pieces of legislation. The
first protects medical and dental practitioners from legal action for assault or battery50
if they provide medical or dental treatment to a child:


who is 14 or over and has consented (having the adult definition of capacity),
or
who is under 16 and a parent or guardian has consented on their behalf.51
The second, permits a guardian to be appointed to consent to medical decisions.52
The third, allows a medical practitioner or a dentist to carry out medical treatment
without consent where the practitioner is of the opinion that it is a matter of urgency 53
to carry out the treatment in order to save the child’s life or prevent serious damage
to the child’s health.54 In commenting on this provision the courts have said:
‘As a test of necessity it is a rather stringent requirement, but it would be incorrect
to introduce elements not found in the subsection, such as imminence of danger.
Further, there should not be introduced some concept of inescapable essentiality
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR
218 at 237-8.
48
[1986] AC 112.
49
For example: Re B (Adult: refusal of medical treatment) [2002] 2 AllER 449. Also see: Potter, J ‘Rewriting
the competency rules for children: full recognition of the young person as a rights bearer’ Journal of Law and
Medicine (2006) 14, 64
50
It may not be a good defence to an obligation to obtain ‘informed consent’ where that is the obligation:
Cavell, R ‘Towards a better consent form’ Journal of Law and Medicine (2007) 14, 326.
51
Minors (Property and Contracts) Act 1970 (NSW), s 49. These provisions do not confer a general capacity on
young people to consent to (or refuse) medical treatment.
52
Guardianship Act, 1987
53
Urgency involves continuation as well as institution and so medical treatment is no less urgent because it is to
extend over a period, for example, of 4 weeks: Re ELM (2006) 69 NSWLR 145 at 150 per Brereton J.
54
Children and Young Persons (Care and Protection) Act 1998 s174
47
8
of the treatment, or the exclusion of any possibility of the child’s survival without
the treatment.’55
Where a child is not competent to make a decision about health care, Australian law
recognises that it is generally within the ambit of a parent’s responsibility to be able
to consent to medical treatment for and on behalf of his or her child.56
On the welfare of the child, this element arises in three ways:
 the child’s decision where the child has capacity
 the parent’s decision where the child does not have capacity
 where the welfare of the child necessitates that neither the child nor the
parent should be the one making the decision.
Looking at each in turn:
a) the child’s decision and the child’s welfare
An adult can withhold (or give) consent even where this does not promote their best
interests.57 A child can only exercise capacity to decide where the treatment is in the
child’s welfare.58 This is so even where the power to consent is an element of the
statutory protection of medical practitioners and dentists.59 Whereas there is
authority in some jurisdictions that a child has a power to consent but not a power to
refuse treatment, this distinction has not been adopted in NSW.60 The insertion of a
welfare element in this situation has been criticised and instead it has been proposed
that there should instead be a requirement that where the child has provided an
informed consent, the court’s role should be limited to ensuring that the child is
competent and has made an informed decision.61
55
Birkett v Director-General of Family and Community Services unreported 3 February 1994 per Bryson J
NSWSC affirmed on appeal unreported 18 November 1996 per NSWCA.
56
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15,
[26].
57
Re MB [1997] 2 FCR 541: 8 MedLR 21; Re B (adult: refusal of medical treatment) [2002] All ER 449; Re T
(adult: refusal of treatment) [1993] Fam 95; St George’s Healthcare NHS Trust v S [1998] 3 WLR 936; Re B
(adult): refusal of medical treatment) [2002] 2 AllER 449; Malette v Schulman (1990) 67DLR (4th) 321;
Schloendorff v Society of New York Hospital (1914) 211 NY 125 at 129-130; Matter of Storar 52 NY2d 363;
Rivers v Katz 67 NY2d 485; Matter of Westchester County Medical Center [O’Conner] 72 NY2d 517; Matter of
Eichner v Dillon 52 NY2d 363. The consent cannot however be to a non-therapeutic removal of tissue as that
would amount to the criminal offence of maiming and it is not possible to consent to the commission of a crime
against oneself: Saul, P, McPhee, J & Kerridge, I “Organ donation and transplantation in Australia” in
Freckleton, I & Petersen, K (eds) (eds) Disputes and Dilemmas in Health Law (Sydney, 2006) 349; McIlwraith J
& Madden B Health Care and the Law (Sydney, 2006) 564.
58
DoCS v Y unreported 30 June 1999 per Austin J NSWSC: [1999] NSWSC 644; Re R (A Minor) (Wardship:
Consent to treatment) [1992] 1 FLR 190 at 202 per Staughton LJ (CA).
59
Re W (A Minor) (Medical Treatment: Court’s jurisdiction) [1992] 3 WLR 758; Re R (A Minor) (Wardship:
Consent to treatment) [1991] 3 WLR 592; Re K, W and H (Minors) (Medical Treatment) [1993] 1 FLR 854;
South Glamorgan County Council v W and B [1993] 1 FLR 574.
60
For example Re: Alex Hormonal Treatment for Gender Identity Dysphoria (2004) 31 FamLR 503: [2004]
FamCA 297, [170] (Nicholson CJ).
61
Bunney, L, ‘The Capacity of Competent Minors to Consent to And Refuse Medical Treatment’ Journal of
Law and Medicine (1997) 5:52.
9
b) the parent’s decision and the child’s welfare
Where a parent is consenting on behalf of the child, then this consent exists to
further the welfare of the child and can be overridden if this test is not satisfied. 62 A
court will be loathe to displace parental responsibility to consent and only do so
where this is positively demanded.63 Examples of where a court has intervened
include the separation of conjoint twins,64 authorizing the withholding of medical
treatment65 and the termination of a child’s pregnancy.66 Another way that the courts
have expressed this is to say that a parent can elect to make a martyr of themselves
but they cannot make a martyr of their child.67
From these decisions it will be seen that most courts only intervene in exceptional
circumstances where the child’s welfare positively demands such intervention to
overturn a decision by parents. When approached to make an order in lieu of a
parent, where there is no evidence that the person is acting contrary to the child’s
welfare the Court has been known to order costs against the applicant. 68 This
approach appears to be changing as at least three recent decisions assert that the
court should exercise its jurisdiction where an applicant seeks it – including when
parents are uncertain how to exercise a power resting with the parents:
‘it is by no means fanciful that parents may seek to have the court give approval
(or disapproval) to a decision which falls within the limits of their parental
responsibility but which they have agonised but may be ambivalent.’69
c) the paramountcy of the child’s welfare
Finally, the welfare of the child may necessitate that the decision not be made by
either the child or a parent but by an independent third party: a court. In NSW this
will be either the Supreme or Family Court.70 This notion can be traced back to at
least 1690 when John Locke argued that parental power extended for the child’s
“help, instruction and preservation” but did not extend to questions about the child’s
life, death or liberties.71 More recently, the High Court in Marion’s Case stated that
62
Re Carroll (No2) [1930] AllER 192 at 201; J v C [1970] AC 668.
Re O’Hara [1900] 2 IR 232 at 240; Re K (a minor)(custody) [1990] 2 FLR 64 at 68.
64
Re A(conjoined twins: medical treatment) [2001] 1 FLR 1: [2001] 2 WLR 480; Queensland v Nolan (an
infant, by her litigation guardian Nolan) [2001] QSC 174.
65
In re J (a minor) CA [1992] WLR 507; Re B (Medical Treatment) [2009] 1 FLR 1264.
66
Re B (wardship: abortion) [1991] 2 FLR 426.
67
R v Senior [1899] 1 QB 283; People (ex rel Wallace) v Labrenz (1952) 104 NE 2d 769; Re S (a minor)
(medical treatment) [1993] 1 FLR 376; Re O (a minor) (medical treatment) [1993] 2 FLR 149; Re S (a minor)
(medical treatment) [1993] 1 FLR 376;
68
Birkett v Director-General of Family and Community Services unreported 3 February 1994 per Bryson J
NSWSC.
69
Re Sean & Russell (Special Medical Procedures) [2010] FamCA 948, per Murphy J [67]; Re Baby D (No2)
[2011] FamCA 176 per Young J [196]; Re Natalie [2012] NSWSC 1109 per White J ; Re W (a minor) (medical
treatment) [1992] 4 AllER 627 at 635.
70
In the Supreme Court it is part of the Court’s inherent power. For the Family Court Family Law Act 1975
(Cth) s 67ZC, permits the Family Court to make orders relating to the welfare of children.
71
J Locke Two treatises of government and a letter concerning toleration reprinted I Shapiro (ed) Yale
University Press, New Haven, 2003 p 176 and quoted in B Matthews & D C Bross “Mandatory reporting is still
63
10
the nature of certain types of medical treatment or the consequences of the
treatment are such as would necessitate a decision of a court rather than the
parents. Broadly, this welfare principle is said to apply where it is a significant
medical procedure for a child, which is invasive or irreversible in nature, and is not
for the purpose of treating a bodily malfunction or disease.72 The vesting of the
decision in a court rather than a parent, seeks to permit a child centred decision free
of any suggestion of conflict of interest and approached judicially with evidence
tested.
The intervention of the court has been held necessary for particular children in
medical situations of sterilization,73 heart surgery,74 tissue donation,75 male
circumcision,76 to restrain and medicate without the child’s consent77 and the use of
a contraceptive to delay puberty.78 In non-medical situations the power has been
used to protecting a child’s confidentiality;79 restrain communications in an
undesirable relationship;80 restrain domestic violence to protect a child;81 exclude a
parent from the family home;82 injunct the removal of children from the home;83
require a parent to return the child to the jurisdiction;84 protect a child from entry into
marriage85 and order paternity tests.86 It is also the basis for holding that consent to
gender re-assignment can only be given by a court.87
This is a separate and conceptually different application of the situation where a
welfare test to that where the parent is exercising capacity to consent contrary to the
child’s welfare.88
The breadth of this welfare power was emphasised in Marion’s Case:
‘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
a policy with reason: empirical evidence and philosophical grounds” (2008) 32 Child Abuse & Neglect 511 at
514
72
Re Baby D (No.2) [2011] FamCS 176, [202], [204] (Young J).; Re Angela (Special Medical Treatment)
(2010) 43 FamLR 98 per Cronin J
73
P v P (1994) 181 CLR 583
74
Re Michael (1994) FLC 92-471
75
In the marriage of GMW and CMW (1997) 21 Fam LR 612 per Hannon J Family Court of Australia
76
Re J (child’s religious upbringing and circumcision) [2000] 1 FLR 571 but see In the marriage of Boldt
unreported 25 January 2008 per Supreme Court of Oregan holding that circumcision is a matter for the parent
holding parental responsibility.
77
Re Thomas (2009) 41 FamLR 220 per Brereton J (NSWSC): [2009] NSWSC 217
78
Re Alex (2004) 31 FamLR 503
79
In re X (a minor) (wardship: restriction on publication) [1975] 1 AllER 697; X County Council v A [1985] 1
AllER 53.
80
In re B (JA) (an infant) [1965] 1 Ch 1112
81
Re V (a minor)(wardship) (1979) 123 Sol J 201
82
Richards v Richards [1984] 1 AC 174 at 207 per Lord Scarman.
83
Lv L [1969] P 25
84
Re N (infants) [1967] Ch 612
85
A Local Authority v Ma [2006] 1 FLR 867
86
In re L (an infant) [1968] P 119
87
Re A (gender reassignment) (1993) FLC 92-402
88
Director-General, Department of Community Services; Re Thomas (2009) 41 FamLR 220: [2009] NSWSC
217, [27], (Brereton J) [27].
11
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.’89
There are some comments in Marion’s Case which if read in isolation appear to
suggest that the power is reserved to the Court because the level of significance lies
in the type of decision rather than the consequence to the welfare of the child. This
has led some subsequent courts to confine the circumstances of the court’s
intervention.
In Re Bernadette, a case where the central argument before the Court was that the
parents rather than the court had the power to consent, the court responded by
saying that it was required to have responsibility to pursue the welfare of the child
because ‘until there is a clear cut line of authority within the medical profession it
would be difficult for parents to reach an informed conclusion’ 90 implying that once
the medical evidence was clear then it becomes a matter for parental decisionmaking. This does not appear to be consistent with the High Court because the
evidence in Marion’s Case was clear as to the nature and consequences of
sterilisation and yet the High Court held that the child’s welfare necessitated a court
consent.
In Re GWW & CMW the Court’s position was:
‘court authorisation is required because of the significant risk of making the wrong
decision and secondly because the consequences of a wrong decision are
particularly grave.’91
Again, the source of this comment can clearly be seen in Marion’s Case but with
respect it again appears to unnecessarily restrict a general power arising from the
Court’s interest in the welfare of those who might otherwise be voiceless.
It is important to recognise that in NSW, and unlike some other jurisdictions, the
parens patriae jurisdiction is broader than the court assuming wardship.92 It is a
jurisdiction in which the Supreme Court can interfere with the actions of the person
exercising parental responsibility without first making the child a ward. 93 Whatever
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15,
[71], (Mason CJ, Dawson, Toohey and Gaudron JJ). While the judgments distinguish between ‘welfare’ and
‘best interests’ the distinctions being drawn are not relevant for the current argument and the term ‘welfare’ is
consistent with the Children and Young Persons (Care and Protection) Act 1998.
90
Re Bernadette (2010) 43 FamLR 467: [2010] FamCA 94, [124]
91
(1997) FLC 92-748, 84,108
92
J Seymour “Parens patriae and wardship powers: their nature and origins” (1994) 14 Oxford Journal of Legal
Studies 159; Re Paul [2008] NSWSC 960, [5]
93
K v Minister for Youth and Community Services [1982] 1 NSWLR 311; In re Jane (1989) FLC 92-007 at
77,256 per Nicholson CJ; Carseldine v Director-General, Department of Children’s Services (1974) 133 CLR
345 at 367 per Mason J (Barwick CJ and Stephen J concurring); Director-General of Social Welfare v J [1976]
89
12
the respective jurisdictional histories, and without diminishing the importance of
those histories in shaping the jurisdiction, it is now accepted that wardship is “the
result of, and not the ground for, the exercise of the jurisdiction”.94
There is no limit to the jurisdiction95 other than the welfare principle, that is, the
power is to be exercised “in the best interests of the child”.96 It is the court which
determines these best interests: not necessarily in accordance with the wishes of the
parents97 or of the child.98 The court is not to take into account an argument that the
State has a legitimate interest in maintaining institutions that are efficient and less
costly.99 Some matters, such as organ donation, may not be seen as beneficial to the
donor child however the court has held that this can benefit the donor child as well
as the recipient.100
This emphasis on the welfare of the child can lead some courts into saying that the
priority which the court is obliged to give to the welfare of the child means that the
child’s rights become superior to those of others, such as mothers.101
Similarly, there are some cases which state that the priority given to the welfare of
the child means that other rights of the child, such as to participation in decision
making are subsumed. This is most frequently raised in cases where the child would
otherwise appear to have the capacity to consent and, in exercise of that capacity
has elected not to proceed with medical treatment with the consequence of that
decision being that the child is likely to shortly die.102 In these circumstances the
VR 89 at 96; In re L (an infant) [1968] P 119 at 156; DoCS v Y unreported 30 June 1999 per Austin J NSWSC;
Minister for Health v AS (2005) 33 FamLR 223 at 227.
94
In re N (Infants) [1967] Ch 512 at 531 per Stamp J. Similarly see: Cary v Bertie (1696) 2 Vern 333: 23 ER
814 at 818; Wellesley v Wellesley (1828) 4 ER 1078 at 1081 per Lord Redesdale. Similarly In re L (an infant)
[1968] P 119 at 156-7 per Lord Denning quoting In re Spence (1847) 2 Ph 247 but see In re Agar-Ellis (1883)
24 Ch 317 at 328, 332 per Brett MR and Cotton LJ for a contrary view.
95
This is true to the extent that the order is necessary for the welfare of the child rather than merely promoting
the welfare of the child: Re X (a minor) [1975] 1 AllER 697 at 703, 705, 706; Re Eve (1986) 31 DLR (4th) 1; Re
W (a minor)(medical treatment) [1992] 4 AllER 627 at 637 per Lord Donaldson and 641 per Balcombe LJ. This
has been followed in Australia: Fountain v Alexander (1982) 150 CLR 615 at 633; In the marriage of Brown
and Pedersen (1988) 12 FamLR 506 at 511; Marion’s Case per Deane J; AMS v AIF (1999) 24 FamLR 756 at
777; Lv T [1999[ FLC 92-875. Because there is no limit to the jurisdiction the Court has held that it should only
be exercised in exceptional circumstances: Re Victoria (2002) 29 FamLR 157.
96
Dalton v Skuthorpe unreported 27 November 1989 per McLelland J NSWSC; Director-General, Department
of Community Services v BB unreported 19 November 1999 per Santow J NSWSC.
97
Minister for Health v AS (2005) 33FamLR 223; Re A (children) (conjoined twins: surgical separation) [2000]
4 AllER 961; Re B (a minor) (wardship:medical treatment) [1990] 3 AllER 927.
98
Minister for Health v AS (2005) 33FamLR 223; Re L [1998] 2 FLR 810.
99
Davis v Hubbard (1980) 506 F Supp 915. Similarly the opinion of a medical practitioner is not determinative
of a child’s welfare however a court would not order a medical practioner to do something the practitioner
considered unethical: AVS v NHS Foundation Trust [2011] 1 FLR 967.
100
In the matter of GWW (husband) and CMW (wife) (1997) 21 FamLR 612; Strunk v Strunk (1969) 445 SW 2d
145 (Kentucky CA); In re Y (adult patient) [1997] 2 WLR 556.
101
Those cases which say that this is the consequence are: Re Baby A unreported 26 July 1999 per Young J
NSWSC: [1999] NSWSC 787; Re S (Adult: Refusal of Medical Treatment)[1993] 1 FLR 26; Bolton Hospitals
NSH v O [2003] 1 FLR 824. For the contrary see: S v McC [1972] AC 24; In re X (a minor) [1975] 1 AllER 697;
In re K (infants) [1965] AC 201.
102
In at least one decision “serious and imminent risk that the child will suffer grave and irreversible mental or
physical harm” was held sufficient: Re W (a minor)(Medical treatment: court’s jurisdiction) [1992] 3 WLR 758
per Nolan LJ at 781. These cases do not apply where it is acknowledged that the child will die in any event and
it is a question of minimising pain: see for example Re Natalie [2012] NSWSC 1109. For a contrary decision
13
Court will not accept that death is ever in the child’s welfare. Even where the child is
proven to have sufficient understanding of the consequences the child’s decision will
not be determinative.103 Being child-centred, that is focussing on the child’s welfare,
is being argued as necessarily denying the child a voice.
By way of illustration, in one case the Court accepted as evidence the notes of a
solicitor concerning his conversation with his client in which he recorded that the 15
year old girl said:
“Death is final – I know that I can’t change my mind. I don’t want to die, but I would
rather die than have the transplant and have someone else’s heart. I would rather
die with 15 years of my own heart. If I had someone else’s heart, I would be
different from anybody else – being dead would not make me different from
anybody else. I would feel different with someone else’s heart, that is good
enough reason not to have a heart transplant, even if it saved my life…” 104
Despite this clear expression of understanding and intent the Court ordered a heart
transplant to proceed.
In a variation of this approach there are cases where the court has found, as a
question of fact, that the medical condition of the child is such that it vitiates consent.
Anorexia Nervosa has been described as ‘destroying the ability to make an informed
choice.’105 In another a ‘fluctuating mental disability’ was held to remove all capacity
even though this was contrary to the evidence of the consulting child psychiatrist.106
In another the child’s views “had been conditioned by the very powerful expressions
of faith.”107 Or further that the child who made a clear statement of intent had been
‘overtaken’ and ‘overwhelmed’ by events so that “she has not been able to come to
terms with her situation.”108
No matter the approach (whether ignoring or minimising the voice of the child) the
court is applying the welfare principle to reach the conclusion that “it is the duty of
that the sanctity of leave is fundamental but not absolute see: Airedale NHS Trust v Bland [1993] AC 789; Re K
(medical treatment: declaration) [2006] 2 FLR 883.
103
Rolands v Rolands (1983) 9 FamLR 320; Dalton v Skuthorpe unreported 17 November 1989 per McLelland J
NSWSC; Director-General of the Department of Community Services v BB unreported 19 November 1999 per
Santow J NSWSC: [1999] NSWSC 1169; Minister for Health v AS (2004) 33 Fam LR 223; Royal Alexandra
Hospital v Joseph unreported 27 April 2005 per Gzell J NSWSC: [2005] NSWSC 422; Royal Alexandra
Hospital for Children (trading as Children’s Hospital at Westmead) v J (2005) 33 FamLR 448 at 456-457 per
Einstein J; Minister for Health v AS (2004) 33FamLR 223; Re E(A Minor) (Wardship: Medical Treatment)
[1993] 1 FLR 386 per Ward J; Re KW and H (Minors) (Medical Treatment) [1993] 1 FLR 854; Re O (A
Minor)(Medical Treatment) [1993] 2 FLR 149; Re S [1994] 2 FLR 1065; Re L [1998] 2 FLR 810; Re P [2004] 2
FLR 1117 at 1120 per Johnson J. Instances where the child was not a Jehovah’s Witness include: Marchant v
Finney unreported 31 July 1992 per Waddell CJ in Eq NSWSC; Re Heather unreported 12 June 2003 per
Campbell J NSWSC: [2003] NSWSC 532; Re M [1999] 2 FLR 1097. Also see: Archard, D & Skivenes, M
“Balancing a child’s best interests and a child’s views” (2009) 17 IJCR 1
104
Re M (Medical Treatment: consent) [1999] 2 FLR 1097 per Johnson J
105
In re W (a minor) (medical treatment: court’s jurisdiction) [1992] 3 WLR 758
106
In re R (a minor) (wardship: consent to treatment) [1991] 3 WLR 592
107
In re E (a minor)(wardship: medical treatment) [1993] 1 FLR 386.
108
Re M (medical treatment: consent) [1999] 2 FLR 1097
14
the court to ensure so far as it can that children survive to attain that age [ie 18
years].”109
In a number of these cases the court has permitted, and often encouraged, the
participation of the child in the proceedings. However the application of the welfare
principle can be so entrenched that there are also occasions where the court can
conclude: “I have no doubt, on the material before the court, that it is in Joseph’s
best interests that he have the blood transfusion. He will die otherwise. His life ought
to be spared.”110. This was a case in which His Honour made the initial decisions
without any participation by a child welfare agency and without having heard from
the boy. No independent children’s representative was appointed for the boy. No
counsellor or other report by someone independent of the parties and who met the
child was put before the court. Evidence of the boy’s views were only provided to the
court by medical practitioners from the children’s hospital which had commenced the
proceedings and the boy’s parents. The parents were not legally represented. The
hospital used senior counsel.111
Hearing the child’s voice
The importance of child participation
While the expression ‘participation’ is not used, a child’s right to participate is clearly
set out in UN CROC as one of the guiding principles of the Convention, as well as
one of its basic challenges.112 The UN Committee on the Rights of the Child has
made the following statement about the meaning of participation:
A widespread practice has emerged in recent years, which has been broadly
conceptualized as “participation”, although this term itself does not appear in
the text of article 12. This term has evolved and is now widely used to
describe ongoing processes, which include information-sharing and dialogue
between children and adults based on mutual respect, and in which children
can learn how their views and those of adults are taken into account and
shape the outcome of such processes.113
109
Re P [2004] 2 FLR 1117 at 1120 per Johnson J. Also see Minister for Health v AS (2005) 33 FamLR 223; Re
B (a minor) (wardship: medical treatment) [1990] 3 AllER 927.
110
Royal Alexandra Hospital v Joseph unreported 27 April 2005 per Gzell J NSWSC: [2005] NSWSC 422
111
In a subsequent decision concerning the same child a different judge said: “On the material it is clearly in his
best interests that the orders be made. His life ought to be spared. He may well die in the absence of the order
being made. Notwithstanding that he is over 16 years old and that his wishes must be given serious
consideration, in law he is still a child. What must guide the court is its consideration of his best interests.”
Royal Alexandra Hospital for Children (trading as Children’s Hospital at Westmead) v J (2005) 33 FamLR 448
at 456-457 per Einstein J. For a case in which the court made a positive decision not to appoint an independent
children’s lawyer in favour of hearing solely from the medical practitioner see: Re Angela (Special Medical
Procedure) (2010) 43 FamLR 98. For further discussion of this aspect see: Best, R, ‘The pre-eminence of child
safety in controversial medical decisions’, Paper presented at the 11 th Australasian Conference on Child Abuse
and Neglect, Gold Coast, Queensland, 1 November 2007, 6112
UNICEF Fact sheet: the right to participation:< http://www.unicef.org/crc/files/Right-to-Participation.pdf>,
1.
113
UN Committee on the Rights of the Child, General Comment No. 12: The child’s right to be heard, 20 July
2009, CRC/C/GC/12, [3].
15
The right of a child to participate as upheld in the Convention does not promise that
decisions of young people will be accepted or that decision-making will be
transferred entirely to the child.114 The Convention is concerned with rights of
participation, not rights of control.115 The UN Committee on the Rights of the Child
has identified a child’s right to be heard and taken seriously as one of the 4 general
principles of the Convention, the others being the right to non-discrimination, the
right to life and development, and the primary consideration of the child’s best
interests.116 This right to participate is not only a right in itself, but should also be
considered in context of the interpretation and implementation of all other rights.
The principle of child participation affirms rather that children are full-fledged persons
who have the right to express their views in all matters affecting them and requires
that this should not be perfunctory but those views are to be heard and given due
weight in accordance with the child’s age and maturity. 117 No age limit is attached to
this principle, although participation is placed in the context of the age and maturity
of the child. Children’s levels of understanding are not necessarily linked to their
biological age. Research has shown that information, experience, environment,
social and cultural expectations, and levels of support all contribute to the
development of a child’s capacities to form a view. 118 For this reason, the views of
the child have to be assessed on a case-by-case examination. The Convention
acknowledges that children can and do form views from a very early age and refers
to children’s’ 'evolving capacity' for decision-making.
Historically children contributed little to major decision making in society. In an era
where they have moved from invisible objects to subjects with legitimate voices of
their own,119 children are now more widely consulted and entitled to have their views
considered.
The following has been said in an English case in relation to the judicious balance to
be struck in the UK’s Children Act 1989:
First is the principle, to be honoured and respected, that children are human
beings in their own right with individual minds and wills, views and emotions,
which should command serious attention. A child’s wishes are not to be
discounted or dismissed simply because he is a child. He should be free to
express them and decision-makers should listen. Second is the fact that a
child is, after all, a child. The reason why the law is particularly solicitous in
protecting the interests of children is because they are liable to be vulnerable
and impressionable, lacking the maturity to weigh the longer term against the
shorter, lacking the insight to know how they will react and the imagination to
know how others will react in certain situations, lacking the experience to
114
Alderson, P & Montgomery J, Health Care Choices: Making decisions with children (2001), IPPR, London.
Thomas, N & O’Kane, C, ‘When children’s wishes and feelings clash with their “best interests”’,
International Journal of Children’s Rights (1998) 6: 137-154, 150.
116
Above n 112, [2].
117
Above n 111.
118
Above n 112, [29].
119
Neale, B & Flowerdew, J, ‘New structures, new agency: The dynamic of parent child relationships after
divorce,’ International Journal of Children’s Rights, (2007) 15(1), 25–42.
115
16
measure the probable against the possible. Everything of course depends on
the individual child in his actual situation.120
Children can actually benefit from the experience of decision making even if their
skill in generating and expressing reasons for their decisions is underdeveloped. It
could then be argued that immaturity and incompetence is an insufficient rationale
for denial of the opportunity for children to participate. The effectiveness of children’s
participation in life and society in later years is built upon early encouragement of
participation.121
Children’s participation has important implications for their well-being.122 Research
shows children attribute a great deal of importance to being acknowledged as
individuals with opinions and feelings of their own and as being able to constructively
contribute to and shape decisions made in their everyday lives. 123
The NSW Commission for Children and Young People conducted a study involving
126 children and young people from across NSW about what well-being meant to
them. In this study, participants identified how it was important to their wellbeing to
be involved in decisions about their lives and that a degree of control was highly
relevant to achieving significant important goals.124 It was identified in the study that
children want to be involved in and be a party to making decisions that affect their
lives, both immediate everyday decisions and those with longer term consequences.
This is especially so when they have to live with the outcomes of the decision. 125 It
was found that children having some control was also important for achieving goals,
being able to negotiate and solve problems, and developing moral orientation and
sense of self.126
Approaches to child participation have been characterised as protectionist,
liberationist and pragmatist. The protectionist model supports adults as decision
makers to prevent the child from making an unwise decision, and therefore
protecting the child from the consequences of such a decision.127 The liberationist
approach respects the child’s autonomy, thereby acknowledging his or her decisions
as competent.128 The pragmatist approach falls somewhere between the two valuing
the child’s own preferences and protecting them from questionable decisions. 129
120
Re S (A Minor) (Independent Representation) (CA) [1993] 2 FLR 437, 448E (Sir Thomas Bingham MR).
Bellamy, C, The State of the World’s Children, 2003: Child Participation (2003) UNICEF The Stationary
Office, New York, 20.
122
Lister, R, ‘Unpacking children’s citizenship’ In A. Invernizzi & J. Williams (Eds.) Children and citizenship
(2007) Sage, London, 9-19.
123
Bagshaw, D et al., ‘Children & families in transition: towards a child-centred integrated model of practice’,
Research Report by the Hawke Research Institute for Sustainable Societies, University of South
Australia (2006) Magill, University of South Australia.
124
NSW Commission for Children and Young People, Ask the children: Overview of Children’s
Understandings of Well-being (2007), < http://www.kids.nsw.gov.au/uploads/documents/ATC_wellbeing.pdf>,
2-3.
125
Ibid, 4.
126
Above n 111, 4.
127
Benporath, S, ‘Autonomy and vulnerability: on just relations between adults and children’, Journal of
Philosophy of Education (2003), 37:127-145.
128
Baston, J, ‘Healthcare decisions: a review of children’s involvement, Paediatric nursing (2008) 20(3):24-26,
24-25.
129
Ibid, 25.
121
17
Each of these gives the child information, allows the child to speak and gives due
weight to what is said. Whilst there are various models and approaches to including
children in decision making, what has been emphasised at an international human
rights level is the need to develop and implement programs to promote meaningful
participation by children in decision making.130 Being child centred therefore includes
hearing the child’s voice.
In considering how to encourage the participation of the child, another aspect to be
considered is the structure of the hearing. The litigious and strictly adversarial
approach of most court hearings, high costs of proceedings, and delays which cause
painful inconvenience associated with cases involving children with disabilities were
all acknowledged by the majority in Marion’s case. The majority stressed the need
for legislative reform and a more appropriate process for decision-making in cases of
this nature.131
Nicholson CJ adopted a different approach in Re Alex, which avoided the formalism
and adversarialism of typical litigation, and encouraged a child-centred experience.
The approach adopted by Nicholson CJ was seen by the parties to the proceedings
to “enhance the depth and richness of the evidence and thereby better served the
aim of an outcome which will be in Alex’s best interests”.132 His Honour
recommended this as the preferred approach in special medical procedure cases.
His Honour noted that the hearing was different in the following ways:





The hearing was conducted in an inquisitorial rather than adversarial format
The hearing was conducted in a private conference room setting around a
table using portable recording equipment
The hearing often took the form of an orderly discussion between witnesses
and legal representatives (including, sometimes, instructing solicitors) and His
Honour
The nature of the proceedings lent themselves to more than one hearing date
rather than a single continuous fixture. This enabled parties to provide further
expert material and for witnesses to consider the evidence of other witnesses
and to respond in a considered way to material points of difference, and
At Alex’s wish, Alex met with His Honour in private and without objection, and
aspects of the conversation remained confidential.133
Court proceedings under parens patriae have also been recognised as requiring a
different approach.
“[The Court] is really sitting primarily to guard the interests of the ward … Its
jurisdiction is in this respect parental and administrative, and the disposal of
controverted questions is an incident only in the jurisdiction”134
130
Above n 112, [88].
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15,
[54] (Mason CJ, Dawson, Toohey and Gaudron JJ).
132
Re Alex Hormonal Treatment for Gender Identity Dysphoria (2004) 31 FamLR 503: [2004] FamCA 297,
[41] (Nicholson CJ).
133
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004)31 FamLR 503: [2004] FamCA 297,
[43] (Nicholson CJ).
131
18
“wardship proceedings are not like ordinary civil actions. There is no ‘lis’ between
the parties. The plaintiffs are not asserting any rights; they are committing their
child to the protection of the court.”135
“The court’s concern is predominantly for the welfare of the person’s involved. It is
not a jurisdiction that is bogged down at all with any technicalities. It is a quite
separate jurisdiction to the supervisory jurisdiction that is committed to this court
by way of prerogative orders under which this court supervises inferior courts and
tribunals to make sure that they do justice and right to all people before them. I
agree with respect to what was said by Palmer J in Re Victoria (2002) 29 FamLR
157 that the parens patriae jurisdiction is only to be exercised in exceptional
cases. However, one of those exception cases is where it is urgently required that
some protective order may be made and the court can see that other curial
processes may not be able to provide instant relief…….. [Just as under section
93, Children and Young Persons (Care and Protection) Act 1998] the Children’s
Court may act on material which is not, strictly speaking, evidence. So may this
court (see Roberts v Balancio (1987) 8 NSWLR 436).”136
There have been arguments made, that decision making for special medical
procedure cases should be removed from the realms of court decision making. An
alternative approach suggested is the option of having a specialist tribunal to make
decisions in relation to special medical procedures. In support of this proposal, it has
been submitted that the process for decision making should take into account the
broader experiences of those who have had the same experiences, and as much as
possible take into account the range of options available to children who identify with
the opposite gender.137 Multi-disciplinary tribunals have been established in some
Australian states, which are set up for the purpose of decision-making with respect to
people with disabilities.
In defence of the proposition that a tribunal should deal with these cases, it has been
argued that the majority’s view in Re Marion may have underestimated the
inquisitorial nature of Family Court proceedings where children’s welfare is
concerned.138 In proceedings involving children before the Family Court and in
exercising its parens patriae jurisdiction, the Court is not governed by the same
adversarial procedures as other kinds of matters. The parens patriae jurisdiction
provides one of the few examples of a common law jurisdiction which has
considerable inquisitorial features and tends, in most cases, to be adversary in form
only.139
A formal case planning approach, involving the child, the family, the child welfare
authority, relevant medical practitioners and an independent representative for the
134
Scott v Scott [1913] AC 417 at 437 per Vicsount Haldane LC
In re B (JA) (an infant) [1965] 1 Ch 1112 at 1117 per Cross J.
136
Re Frances and Benny unreported 22 November 2005 NSWSC per Young CJ in Eq [2005] NSWSC 1207.
137
Parlett, K & Weston-Scheuber, K-M, ‘Consent to treatment for transgender and intersex children’ Deakin
Law Review (2004) 9(2):375-397, 395.
138
Nicholson, A, et al, ‘The Role of the Family Court in Medical Procedure Cases’, Australian Journal of
Human Rights (1996) 2(2):242.
139
Ibid.
135
19
child could be another means of arriving at a decision which meets the welfare of the
child. This process could involve alternative dispute resolution with the aim of
agreement being reached as to a treatment plan for the child. If agreement is
reached between the parties, the Court or a tribunal could still have a role in
approving the plan and ensuring that it was consistent with the child’s best interests,
without the commencement of formal proceedings. If there was a dispute as to what
was in the child’s best interests between the parties, then there would still be a need
for a forum for resolving that dispute, such as a court or a tribunal.
Child participation in medical decision making
Although parents and physicians have traditionally made most medical decisions on
behalf of children, the development and autonomy of children is increasingly being
recognised in medical decision making.140
The UN Committee on the Rights of the Child has provided some guidance in
relation to how children can be heard in decisions relating to their own health care.
The principle of child participation set out in the Convention requires respect for the
child’s right to express his or her views and to participate in promoting the healthy
development and well-being of children.141 The UN Committee has identified a
number of related issues that need to be considered in respect of a child’s
involvement in practices and decisions relating to his or her own health care:




Children, including young children, should be included in decision-making
processes, in a manner consistent with their evolving capacities. They should
be provided with information about proposed treatments and their effects and
outcomes, including in formats appropriate and accessible to children with
disabilities
Countries need to introduce legislation or regulations to ensure that children
have access to confidential medical counselling and advice without parental
consent, irrespective of the child’s age, where this is needed for the child’s
safety or well-being. The right to counselling and advice is distinct from the
right to give medical consent and should not be subject to any age limit
Countries should arrange for the provision of clear and accessible information
to children so as to help them participate in paediatric and clinical trials, and
Countries should enable children to contribute their views and experiences to
planning and programming health services.
Notably, the UN Committee welcomes the introduction in some countries of a fixed
age at which the right to consent transfers to the child. Children above that age
would have an entitlement to give consent without the requirement for any individual
professional assessment of capacity after consultation with an independent and
competent expert. The UN Committee strongly recommends that countries ensure
that, where a younger child can demonstrate capacity to express an informed view
on her or his treatment, this view is given due weight. 142
Harrison, et al, ‘Bioethics for clinicians: 9. Involving children in medical decisions’, Can Med Assoc (1997)
156(6): 825-828, 825.
141
Above n 112, [98].
142
Above n 112, [102].
140
20
Guidelines from the Royal Australasian College of Physicians propose that a child’s
ability to competently participate can be categorised into 1 of 4 areas:




Being informed
Being consulted
Having views taken into account in decision-making, and
Being respected as the main decision-maker.143
These guidelines also indicate that competence, like all forms of cognition, develops
over time depending on the individual and it is important not to prejudge a child
based on their age, as children, particularly those living with a life threatening illness,
often possess a maturity in appreciating their circumstances that is beyond their
chronological age. The older child, depending on maturity and family/whanau
support, will often be able to influence or determine their treatment and should be
actively encouraged to participate in decision-making.144
Gender re-assignment cases
Procedure in the Family Court
The procedure for these applications is set out in the Family Law Rules 2004
(Cth).145 An application can be made by:





A parent of the child
A person who has a parenting order in relation to the child
The child
The independent children’s lawyer, or
Any other person concerned with the care, welfare and development of the
child.146
Once an application is filed, evidence must be given (generally in the form of an
affidavit) to the Court that the proposed medical procedure is in the best interests of
the child.147 The evidence must include evidence from a medical, psychological or
other relevant expert witness that establishes the following:




The exact nature and purpose of the proposed medical procedure
The particular condition of the child for which the procedure is required
The likely long term physical, social and psychological effects on the child:
o If the procedure is carried out, and
o If the procedure is not carried out
The nature and degree of any risk to the child from the procedure
Royal Australasian College of Physicians, Paediatrics & Child Health Division, ‘Decision-Making at the End
of Life in Infants, Children and Adolescents’, A Policy of the Paediatrics & Child Health Division of the Royal
Australasian College of Physicians (2008), 7.
144
Ibid.
145
Family Law Rules 2004 (Cth), Ch 4, div 4.2.3. Applications for court authorisation of therapeutic secure
indefinite care are usually made directly to the Supreme Court.
146
Family Law Rules 2004 (Cth), r 4.08(1).
147
Family Law Rules 2004 (Cth), r 4.09(1). Section 60CC, Family Law Act 1975 (Cth) sets out the matters that
the Court considers in determining what is in the child’s best interests.
143
21





If alternative and less invasive treatment is available - the reason the
procedure is recommended instead of the alternative treatments
That the procedure is necessary for the welfare of the child
If the child is capable of making an informed decision about the procedure whether the child agrees to the procedure
If the child is incapable of making an informed decision about the procedure that the child:
o Is currently incapable of making an informed decision, and
o Is unlikely to develop sufficiently to be able to make an informed
decision within the time in which the procedure should be carried out,
or within the foreseeable future
Whether the child's parents or carer agree to the procedure.148
Due to the sensitive nature of these types of proceedings, any identifying features of
the case such as the names of parties, witnesses, and State in which proceedings
are commenced are not published by order of the Court.
The main purpose of the Family Law Rules is to ensure that each case is resolved in
a just and timely manner at a cost to the parties and the court that is reasonable in
the circumstances of the case.149 The timeframes for these applications as
prescribed in the Family Law Rules recognises the importance of dealing with
medical issues expeditiously, particularly as they relate to children.150 Practice is not
always consistent with this intent so that in Re Bernadette151 judgment was delivered
in January 2010, just before the child’s 18th birthday, whereas the evidence was
entirely given in November 2007. Re Jamie152 commenced in January 2011 and
while judgment was delivered expeditiously at first instance, no judgment has as yet
been delivered in the appeal.
An independent children’s lawyer is appointed to represent the child’s interests in
these applications. It is the role of the independent children’s lawyer to form an
independent view, based on the evidence available, of what is in the best interests of
the child.153 Although the independent children’s lawyer must ensure that any views
expressed by the child are fully put before the Court, the independent children’s
lawyer is not the child’s legal representative and is not obliged to act on the child’s
instructions.154
148
Family Law Rules 2004 (Cth), r 4.09(2). In Re Marion (No.2) (1994) FLC 92-448, Nicholson CJ proposed a
number of particular matters to be considered when the Court is faced with a special medical procedure
application, which are consistent with the prescribed matters required to be addressed in the evidence in support
of such an application. Some of the judgments since handed down by the Family Court concerning cases of this
nature have adopted a similar approach.
149
Family Law Rules 2004 (Cth), r 1.04.
150
On the filling of an application, the Registry Manager must fix a date for a hearing before a Judge of the
Family Court as soon as possible after the date of filing, and if practicable, within 14 days after the date of
filing.150 At the first court date for the application, the Court must either make procedural orders for the conduct
of the case and adjourn the case to a fixed date of hearing, or hear and determine the application. See Family
Law Rules 2004 (Cth), r 4.11, 4.12,
151
Re Bernadette (2010) 43 FamLR 467: [2010] FamCA 94
152
Re Jamie [2012] FamCAFC 8
153
Family Law Act 1975 (Cth), s 68LA(2)(a).
154
Family Law Act 1975 (Cth), s 68LA(4)-(5).
22
Cases before the Family Court
Between 2004 and 2012, there have been 7 children with GID in Australia who have
successfully sought court approval from the Family Court to commence hormonal
treatment or surgical intervention.
On 12 December 2003, an application was filed in the Family Court on behalf of
‘Alex’ by Alex’s legal guardian for authorisation of medical treatment involving the
administration of hormonal therapies that would be begin a sex reassignment
process (Re Alex: Hormonal Treatment for Gender Identity Dysphoria (‘Re: Alex’)155).
The treatment plan was for Alex to have reversible hormonal therapies until the age
of 16 years,156 then to commence irreversible hormonal therapies continuing until
age 18, and finally surgery to effect a change in sex as an adult (for which Court
approval would no longer be required). Alex was 13 years old at the time and
anatomically a girl. Alex, however, had GID including a profound and long-standing
wish to undergo a transition to become male in appearance. It was Alex’s wish to
commence hormonal treatment as he began secondary school. All parties and
expert witnesses were in support of Alex commencing this treatment, and the
evidence was consistent in relation to the distress that Alex was suffering in a body
which ‘feels alien to him and disgusts him’.157 The possibility that Alex was a lesbian
had also been considered and rejected by the expert witnesses.
Nicholson CJ was satisfied that Alex was aware of the physical and social
implications of the proposed treatment, but was also mindful of the risks to Alex’s
well-being if the treatment was not permitted. That is, if treatment was not permitted,
there was concern that Alex would revert to unhappiness, behavioural difficulties at
home and self-harming behaviour.158 It was also foreseen that Alex would be
significantly ill at ease with his body and self-image during his period of adolescent
development and transition into a male public identity as an adult would be more
difficult for Alex than if it occurred at the commencement of secondary school.159
Nicholson CJ was of the view that the evidence did not establish that Alex had the
capacity to decide for himself whether to consent to the proposed treatment:
It is one thing for a child or young person to have a general understanding of
what is proposed and its effect but it is quite another to conclude that he/she
has sufficient maturity to fully understand the grave nature and effects of the
proposed treatment.160
155
[2004] FamCA 297.
That is, the administration of a contraceptive pill containing oestrogen and progesterone to suppress Alex’s
menses.
157
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 FamLR 503:[2004] FamCA 297,
[205] (Nicholson CJ).
158
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 FamLR 503:[2004] FamCA 297,
[209] (Nicholson CJ).
159
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 FamLR 503:[2004] FamCA 297,
[209] (Nicholson CJ).
160
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 FamLR 503:[2004] FamCA 297,
[168] (Nicholson CJ).
156
23
Nevertheless, His Honour acknowledged the ‘uncontroverted evidence’ that the
proposed medical treatment was consistent with Alex’s wishes and the expert
evidence, which left His Honour in no doubt that orders should be made authorising
the first and second stage of the proposed treatment.161
In coming to this decision, his Honour did consider the possibility that Alex’s sense of
gender identity may change, however was satisfied that the proposed course of
treatment (which included ongoing psychological and psychiatric assistance) would
identify any changes to Alex’s sense of self as and if they arose.162
For our purposes his Honour both made a number of preliminary findings of
importance which were the foundations for this outcome and proceeded in a
particular way. In terms of how he proceeded his Honour not only had evidence from
expert witnesses who had directly spoken to Alex but in addition his Honour met with
Alex and referred to the views that Alex directly conveyed.163
His Honour was not concerned at the state of the knowledge of GID being at an early
stage or even experimental. For determining the question whether this was a matter
for the court to decide his concern was about the significance of the consequences
of the decision.164 Finally, he defined GID not as a disorder but as part of the
biological nature of Alex. This meant that the decision, again, required a decision by
the Court because it was not about therapeutic treatment.165
A further application was made on Alex’s behalf in July 2007 for the Court to
authorise a bilateral mastectomy procedure on Alex. In a judgment handed down in
May 2009 (after orders were made granting the application in October 2007) Bryant
CJ acknowledged that Alex had lived as a male for 3 ½ years and that there had
been significant improvements in Alex’s life following his positive response to the
physical changes arising from the hormone therapy. Alex impressed Bryant CJ as an
‘intelligent, thoughtful, reflective and creative young person with well-developed
adaptive skills’. 166
Taking into account these matters, Bryant CJ said that in her opinion Alex was
competent to give his own consent however as no submissions had been made by
any party on this issue, Her Honour refrained from making a positive finding to that
effect. Her Honour approved the proposed surgery, noting that Alex’s views, arising
from his maturity and competence, provided further support for the decision.167
161
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 FamLR 503:[2004] FamCA 297,
[169] (Nicholson CJ).
162
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 FamLR 503: [2004] FamCA 297,
[108] (Nicholson CJ).
163
For example: Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 FamLR 503: [2004]
FamCA 297, [188] (Nicholson CJ).
164
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 FamLR 503: [2004] FamCA 297,
[173] (Nicholson CJ).
165
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 FamLR 503: [2004] FamCA 297,
[195] (Nicholson CJ).
166
Re Alex (2009) 42 FamLR 645: [2009] FamCA 1292, [146] (Bryant CJ).
167
Re Alex (2009) 42 FamLR 645: [2009] FamCA 1292, [146]-[147] (Bryant CJ).
24
Subsequent cases have elaborated on the principles developed in these two
judgments. In Re Bernadette168 the proceedings specifically challenged the question
of whether court approval was required.
The Court determined that it was unable on the evidence to determine whether the
treatment was for therapeutic treatment of a disease and it was because of this level
of medical uncertainty, rather than the significance of the consequence of the
decision, that led to the Court concluding that it had to give consent:
‘I am satisfied that there still remains grave dispute within the medical community
as to the best treatment that can be offered. I am satisfied that until there is a
clear cut line of authority within the medical profession, it would be difficult for
parents to reach an informed conclusion in every case’.169
This position is supported by commentators In relation to ‘gender-normalising
surgery’ for intersexed infants. They have argued that parents are currently unable to
give informed consent because the state of medical knowledge and research
precludes a full disclosure of the information necessary to make an informed,
voluntary and competent decision.170 It has been contended that there is not enough
accurate information available on the benefits or consequences of gendernormalising surgery for even the most well-meaning and contemplative parents to
make truly informed decisions for their infants.171
While this may be so for gender surgery for intersexed infants, the same lack of
medical knowledge exists in relation to the long term outcomes for adolescents
undergoing hormonal treatment related to GID. As noted above, due to the current
state of medical knowledge, including the fact that the causes for GID are unknown,
the Family Court has affirmed the Court’s role as decision-maker in these matters
and has not deferred decision-making to parental authority.
The inability to be in a position to determine whether GID is a disorder or one variant
of gendered behaviour combined with the lack of medical certainty as to the
appropriate response meant that the Court was not satisfied that
‘transsexualism is a condition that falls within the range of matters that can be
addressed and seen as falling within the parameters of normal parental
responsibility to authorise treatment’.172
An appeal against this decision was ruled incompetent because by the time the court
was able to consider the appeal, Bernadette was an adult.173
168
[2010] FamCA 94.
Re Bernadette (2010) 43 FamLR 467: [2010] FamCA 94, [124] (Collier J).
170
Lareau, A C, ‘Who Decides? Gender-Normalizing Surgery on Intersexed Infants’, Geo.L.J (2003-2004) 92:
129-151, 147.
171
Ford, K, ‘First Do No Harm – The Fiction of Legal Parental Consent to Genital-Normalizing Surgery on
Intersexed Infants’, Yale Law and Policy Review (2001) 19(2): 469-488, 487-488.
172
Re Bernadette (2010) 43 FamLR 467: [2010] FamCA 94, [122]-[125] (Collier J).
173
Re Bernadette (2011) 45 FamLR 248: [2011] FamCAFC 50.
169
25
The case of Re: Jamie (Special medical procedure)174 involved a much younger child
with GID than with the cases discussed above. At the time judgment ‘Jamie’ was still
pre-pubescent at 10 years and 10 months. Jamie was anatomically male but
presented as (and had been known exclusively as) a girl. The medical evidence filed
in support of the application was unequivocal as to the urgency for Jamie to
commence ‘stage 1’ treatment to suppress male puberty as she had the pubescent
development of a 14 year old male, which was rapidly progressing. Concern was
held that physiological developments would be irreversible unless treatment started.
The applicant parents sought approval for both stage 1 and stage 2 175 treatments at
the same time to avoid the expense to be incurred by the parents, and the
uncertainty for Jamie of having to return to Court.
Taking into account her long-standing wish to live a life as a female, the support of
her close family members, and the real risks to Jamie if the treatment was not
commenced, Dessau J determined that it was in Jamie’s best interests that the
treatment should commence as a matter of urgency. 176 Dessau J however was not
convinced that approval should be given for the proposed stage 2 treatment as this
would not come into play for another 5 or 6 years, meaning that it was not possible to
project that far into the future and determine what her best interests would be at age
16.177 The judgment records that her Honour considered that there was no dispute
that consent was the responsibility of the Court.178
In relation to the case law for children with GID seeking court authorisation for
special medical procedures, it can be seen that the Family Court has through its
emphasis on the child’s welfare generally, adopted a child-centred approach, has
actively sought the views of the child, placed a significant amount of weight on those
views and strived to understand the circumstances unique to each child subject to
the application. In individual judgments there has been the potential for the
application of the principles to be clouded and conflicted. Nicholson CJ was of the
view that it is necessary in each case where the wishes of a child or young person
are seen to be significant, and not just medical procedure cases, to give careful
consideration to the evidence and opinions concerning the bases for such wishes
and the weight they should be accorded.179 As noted this same emphasis has not
been seen in all subsequent cases.
The Court has also often commented in these cases on the assistance of the
independent children’s lawyers who have placed the child’s views before the Court
as well as actively argued for what they believe is in the child’s best interests.
On the other hand, it has been disputed that rather than taking this difficult decision
away from parents, it should not be classified as a welfare concern at all and the
decision should be a normal decision about everyday behavioural issues made by
174
[2011] FamCA 248. This decision is currently on appeal.
Stage 2 treatment would be administered when Jamie was 16 years of age which would involve taking oral
oestrogen to bring about feminisation of the body.
176
Re Jamie (Special medical procedure) [2011] FamCA 248, [119] (Dessau J).
177
Re Jamie (Special medical procedure) [2011] FamCA 248, [124], [130] (Dessau J).
178
Re Jamie (Special medical procedure) [2011] FamCA 248, [33] (Dessau J).
179
Re: Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 FamLR 503: [2004] FamCA 297,
[224] (Nicholson CJ).
175
26
the parents and those closest to the child who have the greatest knowledge about
the particular condition from which the child suffers, the specific cultural and religious
environment in which the child was raised, the social community in which the child
will develop and other relevant factors.180 Where there is an actual conflict of interest
then the court can amange that conflict – but not to be the decision-maker in all
cases. This is the position as set out in a number of the US authorities.
In the United States, medical intervention for children with GID is a generally matter
of parental authority. As is the case in NSW where parents can consent then they
must act in accordance with the best interests of the child or when there is a conflict
of interest within the decision.181 US Courts have established criteria for determining
when it is their duty to intervene and overrule parents’ decisions in certain matters,
including where parents attempt to deny medical treatment for religious or other
reasons. In these matters, the court will look at the burden of risk of the treatment
and the effectiveness of the treatment when determining if they will override the
parental decision.182
The role of the child welfare authority
For children in out-of-home care and under the parental responsibility of the Minister,
the relevant child welfare authority will always be involved (if not the applicant) for
children with GID that are subject of applications for special medical procedure. This
is by virtue of the Minister’s role as legal parent. Even when a child is not under the
guardianship of the State, the Court may request the relevant child welfare authority
to intervene or the child welfare authority may seek to join the proceedings as an
‘intervener’.183 The prescribed child welfare authority for the state or territory in which
the application is filed is always to be served with the application. 184 In cases before
the Family Court, AHRC has also been permitted to intervene because of the live
issue of a child’s human rights in these cases.
A contentious role for the child welfare authority in NSW is consenting to a category
of special medical treatment. Parents and children are not able to consent to special
medical treatment which includes any medical treatment that involves the
administration of a drug of addiction within the meaning of the Poisons and
Therapeutic Goods Act 1966 (NSW) over a period or periods totalling more than 10
days in any period of 30 days.185 An exception to this requirement is where a written
exemption is granted, either generally or in a particular case, by the Director-General
of the Department of Family and Community Services, Community Services (‘the
Director-General’) on the written request of the Director-General of the Ministry of
Health.186
Aliabadi, S A, ‘You Make Me Feel Like a Natural Woman: Allowing Parents to Consent to Early Gender
Assignment Surgeries for Their Intersexed Infants’, William & Mary Journal of Women and the Law (2005),
11(5): 427-459
181
Beh, HG & Diamond, M ‘David Reimer’s Legacy: limiting parental discretion’ Cardozo Journal of Law &
Gender (2005) 12:5, 5.
182
Above n 170, 141.
183
Section 92(2), Family Law Act 1975 (Cth) allows any person to apply for leave to intervene in the
proceedings, and the court may make an order entitling that person to intervene in the proceedings.
184
Family Law Rules 2004 (Cth), r 4.10.
185
Children and Young Persons (Care and Protection) Regulation 2012 (NSW), cl 25(1)(a).
186
Children and Young Persons (Care and Protection) Regulation 2012 (NSW), cl 25(2).
180
27
Approval, which rests with the Director-General, for the administration of drugs of
addiction to children relates to all children not just children under the parental
responsibility of the Minister, Family and Community Services. The child welfare
authority in NSW therefore retains a role of approving the administration of one
category of special medical treatment to all children in NSW. This provides a ‘checks
and balances’ approach. Whilst raised as a possible area of reform during the
consultation process for the remaking of the Children and Young Persons (Care and
Protection) Regulation 2000 (NSW), it is notable that, in line with submissions made,
this requirement was not amended at that time.187 Reform, and possible abolition of
the current legislative provisions has again been raised in the current round of
reforms.188
In the current appeal before the Full Court of the Family Court concerning ‘Jamie’,189
a public advocacy body sought to intervene in the appeal, despite not being party to
the initial proceedings. The public advocacy body submitted that it should be
permitted to intervene in the appeal on the following general grounds:



The appeal raises a significant issue that affects the interests and statutory
obligations of the public authority
While the independent children’s lawyer must form an independent view of
what is in a child’s best interests and act on that view in the proceedings, the
public authority brings a broader focus on how the law will affect other
children with a disability, and
As the child has a disability, namely a mental disorder, and hence comes
within the jurisdiction and concerns of the public authority as set out in the
relevant State legislation. The public authority’s role in respect of children with
a disability intersects repeatedly and importantly with the issues before the
Court in relation to special medical procedures and that any decision by the
Court which potentially redefines the parameters of special medical
procedures impacts upon the public authority’s role in a significant way.190
In relation to specific intervention in Jamie’s case, it was submitted by the public
advocacy body that:

Particular emphasis should be placed upon the sequence of decisions relating
to childhood GID, which it is said is a ‘controversial and complex psychiatric
disorder’. The characterisation of that disorder and its treatment as a special
medical procedure is fundamental as it distinguishes those cases to which
parental acquiescence can be given without necessary court intervention,
from those where the Court’s involvement needs to be orchestrated by a
relevant party, and
187
It was proposed that for children not under the parental responsibility of the Minister, the Director-General of
Health should have the final say rather than the Director-General.
188
Department of Family & Community Services Discussion Paper. Child Protection: Legislative Reform
November 2012, 52-3
189
Re Jamie [2012] FamCAFC 8.
190
Re Jamie [2012] FamCAFC 8, [18]-[21].
28

In the State it is on every occasion the public authority who has a series of
statutory responsibilities in respect of the welfare and interests, not just of
children, not just of persons who are incompetent, but of, in this instance,
children with a disability. The public authority has assembled significant
knowledge and expertise in respect of such matters and has been a
significant party in respect of most of the cases that have come before the
Court emanating from the State.
Contrary to the position of Re Alex at first instance, the Court accepted the
submission that childhood GID is a ‘mental disorder’ classified and as such within
DSM-IV, TR.191 It was accepted that by definition Jamie has a disability, namely a
mental disorder and hence comes within the jurisdiction and concerns of the public
authority as set out under the relevant State legislation.192 The Court permitted
intervention by the public advocacy body, but limited that intervention to written and
oral submissions and did not permit any evidence to be called by it.
The principle role of the Director-General of the Department of Family and
Community Services, Community Services within NSW is to provide services and
promote the development, adoption and evaluation of policies and procedures that
accord with the objects and principles of the care legislation.193 While a child welfare
authority may not intervene in every special medical procedure case involving a child
with GID, if a case looks to have a significant impact on future of children with this
disorder as well as the safety, welfare, and well-being of other children more widely,
then it is appropriate for the child welfare authority to intervene.
Conclusion
The Family Court has acknowledged that every decision about a child carries a
heavy weight of responsibility with it, and an order that will result in a young person
living in one gender when born into another carries a particular onus.194 Moreover,
requiring a Court to project a child’s best interests into the future, always weighs
heavily, but never more heavily than when considering a special medical procedure,
part of which may ultimately be irreversible.195 A decision to proceed or not to
proceed with treatment can have life-long consequences on the child. The court
considers that its authorisation remains necessary and is in essence a procedural
safeguard.196
In doing this, both the emphasis on categorising this medical treatment for the
purposes of deciding who can provide consent and what is the welfare of the child,
so that a child centred approach can be implemented, can risk drowning the child’s
voice. It is evident that much remains unknown in relation to the causes of GID in
children and the long term outcomes of commencing a path of medical intervention
for children with GID. Notwithstanding this uncertainty, it is of utmost importance to
The DSM-IV,TR is a classification of mental disorders, and under ‘gender identity disorder’ is a subcategory
of ‘sexual and gender identity disorders which classify it as a ‘clinical disorder’.
192
Re Jamie [2012] FamCAFC 8, [49].
193
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 16(1).
194
Re Rosie (Special medical procedure) [2011] FamCA 63, [110] (Dessau J).
195
Re O (Special medical procedure) [2010] FamCA 1153, [108] (Dessau J).
196
Re GWW and CMW (1997) FLC 92-748, 84,108 (Hannon J).
191
29
keep the child at the centre of such an important decision as well as acknowledging
and respecting the family and circumstances surrounding the child.
A pragmatic approach should be adopted, which recognises that a child’s welfare
needs protection while at the same time allowing flexibility for the child’s emerging
knowledge, maturity and capacity for self-determination. While the primary and
overriding consideration in any decision will always be the welfare of the child,
optimal child participation can still be achieved by ensuring a child is fully informed,
involving the child in the decision making process in a meaningful way, listening to
what the child has to say, and placing due weight on the child’s wishes in
accordance with the child’s capacity. While a child’s participation need not be
determinative, it should certainly be given due weight.
January 2013
30