Secretary, Department of Health & Community Services v B

Secretary, Department of Health & Community Services v B - [1992] HCA 15 - HCA 1992 case summary — Zoe

[93]

The type of operation proposed is one which involves the deprivation of a basic human right, namely, the right of a woman to reproduce, and, therefore, it would be, if performed on a woman for non-therapeutic reasons and without her consent, a violation of such right. Much of the discussion by the House of Lords in In re B. about this "basic human right" was, however, in the context of the main question before the Court - whether or not sterilization of a mentally disabled person could be authorized by the Court in any circumstances - and was in response to the issues raised by the decision of the Canadian Supreme Court in Re Eve that such a procedure "should never be authorized for non-therapeutic purposes under the parens patriae jurisdiction" [4] . The House of Lords found that the basic human right to reproduce did not preclude a sterilization of a minor in appropriate circumstances but only Lord Templeman commented on the issue of mandatory court authorization. He concluded [5] that consent to sterilization of a minor was outside the scope of parental power and "should only be carried out with the leave of a High Court judge". Again, since the major issue before the House of Lords was the question whether any person or body could consent to sterilization on behalf of a disabled minor, his Lordship did not elaborate his view that court authorization is necessary. He said [6] that "[n]o-one has suggested a more satisfactory method [than proceedings before a judicial tribunal] of reaching a decision which vitally concerns an individual but also involves principles of law, ethics and medical practice", and he referred again to "the fundamental right of a girl to bear a child". 1. [1988] A.C., at p. 205, per Lord Bridge of Harwich; see also p. 206, per Lord Templeman, and p. 211, per Lord Oliver of Aylmerton. 2. [1976] Fam., at p. 193. 3. [1986] 2 S.C.R., at p. 431; (1986) 31 D.L.R. (4th), at p. 32. See In re B., [1988] A.C., at pp. 203-204, 204-205. 4. ibid., at p. 205. 5. ibid., at p. 206.

[229]

However, between therapeutic purposes on the one hand and manifestly base purposes on the other, a variety of different purposes may appear which many would regard as of significant value in assessing the "best interests" of an intellectually disabled child. The purposes which fall into this category can be gathered under the broad description of "preventative": to prevent the risk of a pregnancy which the child could not properly understand and the concomitant risk of parenthood with responsibilities beyond the capacity of the child to discharge. These risks are an understandable source of anxiety to parents, guardians and others who have a genuine concern for the welfare of an intellectually disabled child. These are risks which create an understandable anxiety in many parents, guardians and others who have a genuine concern for the welfare of a normal child. In the case of a normal female child, it would be wholly unacceptable to permit sterilization in order to prevent pregnancy or parenthood, though those events might be thought to be tragedies in particular circumstances by reasonable persons concerned with the welfare of the child. Depending on the circumstances, the use - or, a fortiori, the exploitation - of the sexual attributes of a female child may entail tragic consequences, yet the risk or even the likelihood of tragic consequences affords no justification for her sterilization. What difference does it make that the risk is occasioned by an intellectual disability? The answer to this question depends on the view taken of the proposition earlier set out in the Declaration on the Rights of Mentally Retarded Persons: they are entitled to the same rights as other humans to the maximum degree of feasibility. To accord in full measure the human dignity that is the due of every intellectually disabled girl, her right to retain her capacity to bear a child cannot be made contingent on her imposing no further burdens, causing no more anxiety or creating no further demands. If the law were to adopt a policy of permitting sterilization in order to avoid the imposition of burdens, the causing of anxiety and the creating of demands, the human rights which foster and protect human dignity in the powerless would lie in the gift of those who are empowered and the law would fail in its function of protecting the weak.

[241]

The responsibilities and powers of parents extend to the physical, mental, moral, educational and general welfare of the child [42] . They extend to every aspect of the child's life. Limits on parental authority are imposed by the operation of the general law, by statutory limitations or by the independence which children are entitled to assert, without extra-familial pressure, as they mature. Within these limits, the parents' responsibilities and powers may be exercised for what they see as the welfare of their children. Within those limits, the parents' authority is wide enough to permit them to authorize therapeutic medical treatment for a child, whether or not the child consents to the administration of that treatment. A fortiori, if the child is incompetent to give consent, whether by reason of age, illness, accident or intellectual disability, the parents have the responsibility and power to authorize the administration of therapeutic medical treatment, whether or not that treatment involves sterilization. Such a power is exercised without question when the treatment does not involve sterilization and there is no reason to distinguish treatment that does involve sterilization when the sterilization is merely a necessary incident of therapy directed to some other physical or mental condition. It cannot be right to deny therapeutic treatment to a child unless the parents first obtain the leave of a court [43] . The power to authorize therapeutic medical treatment exercisable by parents who are guardians and custodians of a child is exercisable by duly appointed guardians or custodians according to the nature of the treatment and the urgency with which it needs to be administered. Ordinarily, the power to authorize the therapeutic sterilization of an intellectually disabled child would be reposed in the child's guardians. Although it may sometimes be difficult objectively to determine whether a sterilization proposed in a particular case is therapeutic, the power to authorize the performance of a therapeutic sterilization must rest with the parent or other guardian. But where there is a doubt about the therapeutic character of a proposed procedure, those who would be involved in the procedure may be at risk if they act merely upon a purported authorization given by the parent or other guardian.

[248]

In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded. There must be some clear justification for a court's intervention to set aside the primary parental responsibility for attending to the welfare of the child [4] . Of course, in a case where the welfare of a child involves consideration of a parent's function of providing religious or moral upbringing, minds may differ as to the desirability of court intervention. For example, I would respectfully doubt whether the primacy of parental responsibility was sufficiently recognized in the leading English case of Gillick v West Norfolk A.H.A. [5] in relation to so much of the declaration sought by Mrs. Gillick as related to the welfare of her own children and her ability to discharge her duties as parent and custodian of those children [6] . But judicial opinion has a much narrower role when the welfare of a child turns on the therapeutic character of a proposed sterilization. The supervisory jurisdiction in questions of sterilization of intellectually disabled children requires consideration only of purpose and proportionality. If parents or guardians have authorized the sterilization of a child but the court is of opinion that the proposed sterilization would not be therapeutic and on that account would violate the child's right to personal integrity, the court may prohibit by injunction the carrying out of the sterilization [7] . Conversely, if a therapeutic sterilization is required but the child's parents or guardians have failed or refused to authorize the procedure, the court may authorize sterilization by an appropriate and proportionate procedure [8] . 1. [1970] A.C. 668, at p. 695. 2. See Fountain v Alexander (1982), 150 C.L.R., at p. 645; In re K.D., [1988] 3. A.C. 806, at pp. 824-825, and the note on this case in Law Quarterly Review, vol. 107 (1991) 386. 4. [1986] A.C. 112. 5. cf. Ginsberg v New York (1968), 390 U.S. 629, at p. 639. 6. As in In re D. (A Minor), [1976] Fam. 185. 7. See, by analogy, Rolands v Rolands (1983), 9 Fam. L.R. 320; sub nom. Director General of Youth and Community Services (as tutor of child Rolands) v Rolands [1984] FL.C. 91-519; In re B. (A Minor), [1981] 1 W.L.R. 1421; [1990] 3 All E.R. 927.

[256]

In the United States, the assumption by courts of a power to authorize sterilization of intellectually disabled people has been accompanied by judicial prescription of protective procedures and criteria for determining whether sterilization is in the patient's best interests: see In re Grady [17] and Matter of Guardianship of Hayes [18] . Though the desirability of protective procedures and criteria is manifest, their prescription gave the Courts' decisions a legislative character in the eyes of Rosselini J. who, speaking for the minority in Matter of Guardianship of Hayes, expressed his concern that the courts not become "an imperial judiciary" [19] . I share his concern. The hypothesis that a court is empowered to authorize the non-therapeutic sterilization of intellectually disabled children is asserted in order to satisfy what the court perceives to be a lacuna in the powers which ought to be available to satisfy the exigencies of the situation of some disabled children. But the court is an instrument of State power, and the powers of the State to authorize interference with the personal integrity of any of its subjects otherwise than for therapeutic purposes is not self-evident. If such a power can be exercised to secure what the court may deem to be the welfare of an intellectually disabled child, may not a like power be exercised to secure what the court may deem to be the welfare of any child? It is a power which would be exercised not by an anxious and anguishing parent or guardian who can be called to account, but by a judge to whom the case is assigned in a court's list and who, having exercised his or her discretion, is discharged from all responsibility for the consequences. The case of Stump v Sparkman [20] , which left the sterilized woman and her husband without remedy, despite a demonstrably erroneous exercise of judicial power to authorize her sterilization, is a distressing reminder that courts, for all their independence and wisdom, are not appropriate repositories of so awesome a power.

[258]

Moreover, the assumption of a power to authorize non-therapeutic sterilizations without legislative authority is tantamount to the assumption of a power to dispense from compliance with the criminal laws which otherwise protect personal integrity. Justification by court order for what is otherwise an offence is neither an orthodox doctrine of the common law nor consistent with the proper function of a court. Though some statutes create offences exempting instances in which a court is satisfied that particular circumstances exist, the proposition that a court can assume a power to dispense from the criminal laws which protect personal integrity when the judge believes the dispensation is for the welfare of a child is truly judicial imperialism. If that proposition were valid, the laws which presently bear on organ and tissue donations, medical experimentation, abortion or other surgical procedures could be overridden if an application were made to a judge vested with the parens patriae jurisdiction who took the view that the application of the law in the particular circumstances of the case would not be in the child's best interests. It is one thing for a court to exercise the power possessed by parents and guardians to authorize surgical procedures on a child and for the criminal law to accept that authorization, as it accepts an authorization by the parents or guardians, to be the equivalent of consent to what would otherwise be an unlawful application of force. It is another thing for a court to exercise an exclusively curial power to authorize a surgical procedure and to require that authorization to be treated both as an effective consent and as conclusively determining the lawfulness of the procedure. In the former case, the criminal law is simply construed to take account of the parental power which has always been recognized; in the latter case, protection which the criminal law has been fashioned to provide is undone by the exercise of a novel power, created by declaration of the instrument of government claiming to exercise it.

[261]

Jurisdiction is conferred on the Family Court by s. 63(1) of the Family Law Act "in relation to matters arising under this Part", that is, under Pt VII - Children. Part VII omits to prescribe the matters that may arise in relation to which proceedings may be instituted. However, s. 64(1) gives the Court directions as to the conduct of "proceedings with respect to the custody, guardianship or welfare of, or access to, a child". It is probably necessary for courts to construe this unsatisfactory drafting as conferring on the Family Court jurisdiction in matters where "the custody, guardianship or welfare of, or access to, a child" is in issue, for otherwise the extensive provisions of Pt VII would be nullified. But the jurisdiction with respect to welfare can hardly be construed as authorizing the Family Court to make whatever order a judge may deem to be for the welfare of a child, irrespective of the general law or the rights of other people. The "welfare" jurisdiction of the Family Court does not permit the making of orders which exempt the child from compliance with laws that bind him or her or which remove the protection which laws confer on the child. In particular, the terms in which ss. 63(1) and 64(1) are drawn do not suggest that the Court has been invested with a power to authorize an invasion of the personal integrity of a child greater than the power possessed by the child's custodians or guardians. Rather the reference to "welfare" in the context of custody, guardianship and access suggests that the jurisdiction is to determine disputes in which a decision (or a failure to make a decision) as to the welfare of a child by the custodian or guardian or person having access is challenged by another and the jurisdiction is invoked to hear and determine that dispute. As the "welfare" jurisdiction of the Family Court does not extend to wardship, it does not correspond with the parens patriae jurisdiction of which the wardship jurisdiction forms an important part.

[285]

Section 63E(2) provides that a person who has or is granted custody has the rights and the responsibility referred to in pars (a) and (b) of s. 63E(1) (see above). It follows that, in a case such as the present where the parents are guardians and have the custody of a child, they are responsible for the long-term welfare of the child, have "the right to have the daily care and control of the child", have "the right and responsibility to make decisions" concerning that daily care and control, and enjoy the general powers, rights and duties "vested by law or custom in the guardian of a child". In my view, "the right to have the daily care and control" of a child under eighteen years and "the right to make decisions" in relation thereto referred to in s. 63E(1) and (2) should be understood in the context of the common law and do not subject such a child to greater control and authority than that possessed at common law by parents who have custody. That being so, and subject to some presently irrelevant variations, the effect of s. 63E(1) and (2) of the Family Law Act is, as regards infants in the custody of their parents, to grant statutory recognition and confirmation of the common law powers, rights and duties of such parents [32] . In the absence of any Northern Territory statutory provisions dealing with consent to non-emergency surgery or medical treatment in the case of an infant, it is necessary to identify the nature and extent of those common law powers, rights and duties for the purpose of answering the questions before the Court in this case. 1. See In the Marriage of Holmes (1988), 12 Fam. L.R. 103, at p. 113; Re Marion (1990), 14 Fam. L.R., at p. 462; [1991] F.L.C., at pp. 78,312-78,313, per Strauss J.; Public Guardian v M.A. (1990), 68 N.T.R., at p. 25, per Asche C.J. but cf., for a wider view of the scope of the rights and responsibility referred to in s. 63E(1) and (2), the judgment of McCall J., Re Marion (1990), 14 Fam. L.R., at pp. 470-472; [1991] F.L.C., at pp. 78,320-78,321.

[290]

The tension between the law's recognition of the gradual transition from the disability of infancy to the full capacity of adulthood and such extreme judicial statements of the extent of the rights of a father with respect to his legitimate children who have not reached the age of full adulthood must be resolved in this country by the rejection of the extreme view that parental authority persists unabated until a child attains full adulthood. For one thing, the basis of that extreme view was not merely that the father enjoyed the right of legal guardianship. It was a perception of "the natural rights of a father" which were "greater than those which a testamentary guardian, or any other guardian, can have" [46] . That perception could not survive, without significant qualification, either the law's recognition, under the impetus of legislative developments, that the position of the father in relation to a child was "not superior to that of the mother" [47] or the law's increasing insistence that, while it is commonly convenient and accurate to speak of parental "authority" and parental "powers", the relationship between parents and a child is, from the parents' point of view, more appropriately expressed in terms of duty [1] . For another, even in the nineteenth century, the jurisdiction of the Chancery Court to intervene to protect the welfare of a child in the exercise of the authority of the Crown as parens patriae was considerably more extensive than was acknowledged by such extreme statements of the extent of the father's "natural" or "sacred" rights as those quoted above. Thus, Lindley L.J. in Thomasset v Thomasset [2] equated the "rights" of a father with those of a "legal guardian" and pointed out [3] that in the exercise of the parens patriae jurisdiction, "the rights of fathers and legal guardians were always respected, but controlled to an extent unknown at common law by considering the real welfare of the infants". His Lordship added [4] that the effect of the Judicature Act 1873 UK [5] was that all the Divisions of the English High Court were required to "recognize the cardinal principle on which the Court of Chancery always proceeded, namely, that in dealing with infants the primary consideration is their benefit". In this Court, it has consistently been accepted as "settled law that in the exercise of the paternal jurisdiction of the Court of Chancery the dominant matter for the consideration of the Court is the welfare of the child" [6] . Indeed, in a modern context, it is preferable to refer to the traditional parens patriae jurisdiction as "the welfare jurisdiction" and to the "first and paramount consideration" which underlies its exercise as "the welfare principle" [7] .

[294]

The effect of the foregoing is that the extent of the legal capacity of a young person to make decisions for herself or himself is not susceptible of precise abstract definition. Pending the attainment of full adulthood, legal capacity varies according to the gravity of the particular matter and the maturity and understanding of the particular young person. Conversely, the authority of parents with respect to a young person of less than eighteen years is limited, controlled and varying. It is limited to what is in the interests of the welfare of the young person. That being so, it can, at least as regards really serious matters, be validly exercised only after due inquiry about, and adequate consideration of, what truly represents the welfare of the child. It is controlled in that, if it is exceeded or if it is exercised other than for the benefit or welfare of the child, a court invested with the welfare jurisdiction of the old Chancery Court has jurisdiction to intervene to prevent excess, abuse or neglect of authority. Such a court can, when its jurisdiction is invoked, make an order directed to ensuring that what should, within the limits imposed by financial and other practical constraints, be done or not done in the interests of the welfare of an infant is done or not done. It is varying in that, to adopt Lord Denning M.R.'s expression [11] , it is a "dwindling right" which diminishes as the legal competence of the child to make decisions for herself or himself increases. That means that the relationship between a child and her or his parents will ordinarily pass through a transitional stage in which authority is shared. It is, however, unnecessary to discuss that aspect of parental authority in the present case since it is common ground that the fourteen-year-old girl ("Marion") in respect of whom an order is sought authorizing the performance of a hysterectomy and ovariectomy is, by reason of intellectual disability, presently quite incapable of having an informed view or making a responsible decision about whether the operation should be performed. In these circumstances, the authority of the parents is not diminished by reason of any relevant decision-making capacity of the child.

[298]

In the light of the above, one can identify two broad common law propositions relating to the authority of parents to authorize surgery in the case of a relevantly incapable child such as Marion. By a relevantly incapable child ("an incapable child"), I mean a child who is, as a matter of fact, completely unable to make a reasoned decision for herself or himself about the desirability of the particular treatment. The first of those propositions is that parental authority exists to authorize such surgery for the purpose, and only for the purpose, of advancing the welfare of the child. It does not extend to authorizing surgery because of a perception that it is in the interests of those responsible for the care of the child or in the interests of society in general (e.g. for eugenic reasons). That which constitutes the welfare of a child in a particular case falls to be determined by reference to general community standards, but making due allowance for the entitlement of parents, within the limits of what is permissible in accordance with those standards, to entertain divergent views about the moral and secular objectives to be pursued for their children [13] . The second broad proposition is that, at least in relation to a serious matter such as a major medical procedure, parental authority can be validly exercised only after due inquiry about, and adequate consideration of, what truly represents the welfare of the child in all the circumstances of the case. Those two broad common law propositions appear to me to be beyond serious dispute. Ordinarily, their application will be straightforward. Most surgery is for the conventional medical purpose of treating or preventing physical illness. Competent medical advice that the particular surgical procedure is necessary to preserve life or to treat physical illness will suffice to satisfy the requirement of due inquiry and adequate consideration. Indeed, at least where medical opinion is unanimous in recommending immediate major surgery to avoid death or to treat or prevent grave illness or physical incapacity, parental duty will ordinarily dictate the authorization of such surgery. However, circumstances may exist where the purposes of major surgery lie outside or extend beyond those conventional medical purposes or where the detriment of grave adverse consequences must be weighed against medical advantages. While the above propositions remain applicable to identify the extent and regulate the exercise of parental authority in respect of an incapable child in such circumstances, their application may be complicated and uncertain by reason of difficulty in determining the content of controlling community standards or in deciding what is truly conducive to the overall welfare of the particular child in all the circumstances. It is so in the category of case with which the Court is at present concerned.

[306]

X.'s parents believe there is very little point in her having monthly periods for the next 30 years. She has a very strong heart and is likely to live that long. She will never be able to have children, and that function in her life is quite unnecessary. They believe X. goes through enough pain and agony without having to deal with monthly periods as well. She has had to have operations to cure club feet and to straighten her back. She came through these well, and in hospital was given pain relief mainly by suppositories because of the difficulty in getting her to swallow anything, let alone giving her injections. The mother says X. is hopeless with medicines. She will not let other people touch her or put anything in her mouth except food. In circumstances where there was no prospect of any significant improvement in X.'s condition as she grew older, it was obvious - as Hillyer J. found [19] - that it was "absolutely vital" that "she should not become pregnant" since she "most certainly could not cope with motherhood, pregnancy or labour" and the "only way she could become pregnant would be by being raped, because she is unable under any circumstances to consent". The application by X.'s parents for an order consenting to a hysterectomy operation upon X. was supported by medical evidence that the surgery was desirable and that there was no less drastic treatment which would, in the circumstances, be appropriate. Hillyer J. held that the High Court of New Zealand had jurisdiction to make such an order under its residual parens patriae jurisdiction [21] and that, in the circumstances of the case, such an order should be made. His Honour made clear [22] that he saw the purpose of the operation as not sterilization but the prevention of menstruation. That being so, the importance of his Honour's conclusion that it was "absolutely vital" that X. should never become pregnant was that it turned what would, in the case of a normal child, have probably been a decisive countervailing consideration into a supporting factor. 1. [1991] 2 N.Z.L.R., at p. 367. 2. ibid., at p. 368. 3. [1991] 2 N.Z.L.R., at p. 367. 4. See, generally, Pallin v Department of Social Welfare [1983] NZ.L.R. 266, at p. 272, per Cooke J. 5. [1991] 2 N.Z.L.R., at p. 369.

[307]

As I have indicated, the reason for my referring at length to the facts of Re X. is that the case provides an example of circumstances in which it is quite clear that surgery involving irreversible sterilization for other than conventional medical purposes is necessary for the welfare of an incapable child. Once it is recognized that parental authority to authorize medical treatment extends, in some circumstances, to the authorization of surgery involving irreversible sterilization (e.g. for the treatment of serious illness), there is no basis in legal principle for excluding from the scope of that parental authority circumstances such as those involved in Re X. Certainly it cannot be said that such surgery for the treatment of a serious illness, in a case where it involves the sterilization of a mentally normal child, is more obviously for the overall welfare of the child than surgery involving irreversible sterilization in a case such as Re X. where there are, from the point of view of the child's interests and welfare, compelling physical and social reasons for such surgery and where there is no significant countervailing detriment. It is true that there is a passage in the judgment of La Forest J. in Re Eve [23] which, if read in isolation, suggests that the Supreme Court of Canada accepted the proposition that it can never be safely concluded that "non-therapeutic sterilization" is for the benefit of a person incapable of consenting to it. Re Eve was, however, a case involving the suggested sterilization for contraceptive purposes of an intellectually disabled woman of whom it was said [24] that "there is no evidence that giving birth would be more difficult for Eve than for any other woman". The circumstances of the case were simply not comparable to a case such as Re X. and it seems to me to be quite clear that the references to "non-therapeutic sterilization" in the judgment of La Forest J. should not be understood as intended to cover a case where what is involved is surgery upon a profoundly mentally disabled girl to prevent extraordinary difficulty, discomfort and pain which would accompany menstruation [25] . Be that as it may, I respectfully agree with Lord Bridge of Harwich [26] that:

[311]

In a case where parental authority existed in relation to an incapable child, the welfare jurisdiction of the Chancery Court was supervisory in the sense that it was exercisable only where actual or threatened abuse or neglect of that parental authority justified the making of a wardship order. While the jurisdiction of the Family Court to make orders for the welfare of a child is not structured upon a wardship order, it nonetheless remains, in a case where the parents retain full parental authority, primarily supervisory in its character. In its exercise, the Family Court must give due weight to genuine parental views about what is and what is not in the interests of the welfare of the particular child and, in an appropriate case, recognize that there is scope for parental decision [28] . The welfare jurisdiction of the Chancery Court was not, however, exclusively supervisory. It was neither derivative from the rights and responsibilities of parents [29] nor confined to what lay within parental - or paternal - authority [30] . It could, for example, be invoked, at the suit of the parents themselves, to make binding orders for the protection of the child which were plainly beyond the powers of the parents [31] . It could be invoked to override and determine the authority of the parents [32] . Similarly, the fact that the jurisdiction of the Family Court is primarily supervisory in the case of an infant in the custody of her or his parents does not preclude the Family Court from intervening in a case where it considers that, giving due weight to genuine parental views, the gravity of the question involved and the protection of the welfare of the child require its intervention [33] . Where appropriate, it can, in such a case, override a parental refusal to authorize necessary surgery [34] . In such a case, the preferable course will ordinarily be to appoint a guardian of the child for the limited period necessary for the authorization and performance of the surgery. If, however, circumstances were to arise in which there was no appropriate person prepared to accept appointment as such a temporary guardian, the court could, in my view, itself directly authorize it [35] . More important for present purposes, the jurisdiction extends to granting, at the suit of a parent or interested party, declaratory or other relief in relation to the existence and proper exercise of parental authority. That jurisdiction extends to the making of a declaration that a parent or the parents of an incapable child would or would not, in the particular circumstances of a case, be justified in authorizing surgery involving irreversible sterilization.

[313]

In In re B. (A Minor) [36] , Lord Templeman expressed the opinion that, in England, "sterilization of a girl under eighteen should only be carried out with the leave" of a judge of the Family Division of the English High Court. The other members of the House of Lords in that case did not express any opinion on that question but a similar view was expressed by Lord Goff of Chieveley in the case of an operation for the sterilization of an intellectually disabled adult woman who lacked the capacity to consent [37] . There are powerful considerations which support those views, including the grave consequences, both physical and psychological, of irreversible sterilization and the need to protect the weak and vulnerable from eugenic and utilitarian theories which discount the importance of human integrity and complete personality and which are repugnant to the standards of our community. Those considerations also include the fact that there may well exist a divergence or conflict - sometimes unappreciated - between the interests of the incapable child and the interests of those who are or will be responsible for looking after her or him and for caring for any offspring. In a context where the factors militating against surgery involving sterilization will not be confined to medical considerations, the courts are likely to be better able than medical practitioners, even acting as members of a multidisciplinary team, to ensure that due regard is paid to, and only to, relevant factors in ascertaining what is truly in the interests of the welfare of the child. All these considerations strongly support a conclusion that the effect of the requirement that parental authority be exercised only after due inquiry and adequate consideration is that, in the absence of any applicable statutory procedure or jurisdiction in any other competent tribunal, the parents of an incapable child must obtain a declaratory order from the Family Court (or some other court vested with applicable welfare jurisdiction) before they can validly authorize surgery involving irreversible sterilization for a purpose other than the conventional medical ones of preserving life and treating or preventing grave physical illness.

[317]

What then is the legal resolution of the different considerations favouring and militating against a conclusion that the common law requirement of due inquiry and adequate consideration can only be satisfied by recourse to the Family Court (or to the Supreme Court exercising cross-vested or any residual jurisdiction) in the case of surgery involving the irreversible sterilization of an incapable child in the Northern Territory? That question arises in this Court as a question of law. The processes of legal reasoning by induction and deduction from legal principle are, however, inadequate to provide an answer to it. The reason why that is so is that, while the question arises in a legal context, the issues which it involves are as much social or moral as they are legal and the answer to it is inevitably affected by personal perceptions of current social conditions, standards and demands. The answer which I would give to it is that the reconciliation of the conflicting considerations requires that a distinction be drawn between those cases where the need for such surgery in the interests of the welfare of the child is, according to general community standards, obvious and those cases where it is not. In a case where such surgery is obviously necessary, a requirement of court approval would impose an unjustifiable burden upon the parents of an incapable child. More important, the requirement would itself be undesirable in that its only significant effect would be to prevent parents, who were not prepared to subject themselves and their families to the expense, inconvenience and anxiety of court proceedings, from authorizing surgery which was obviously in the interests of the welfare of the child. In a case where such surgery is not obviously necessary, the need to protect an incapable child from unjustified surgery involving irreversible sterilization outweighs all other considerations. Notwithstanding the expense, inconvenience and other disadvantages of court proceedings, it appears to me that, in the absence of some special statutory procedure, such proceedings represent the only adequate protection.

[363]

However, the father's near absolute right of control over the person, education and conduct of his children has been taken away by a series of enactments in England and Australia in the last hundred and fifty years and by the social and judicial recognition of children as persons with independent rights. Thus, legislation has given the mother as well as the father the right to the custody of their children. Moreover, the "welfare of the child" criterion means that, where the child is young, a custody dispute between the father and mother will usually be resolved in favour of the mother. Furthermore, the courts have increasingly recognized the "rights" of children by taking account of their wishes in custody disputes. In other cases, the courts have recognized the ability of mature children to make decisions concerning their own affairs. In an era in which many children over the age of fourteen leave home, support themselves, and enter into commercial dealings and de facto and sexual relationships, the courts could hardly do otherwise. Consequently, in Hewer v Bryant [29] , Lord Denning said: "that the legal right of a parent to the custody of a child ends at the eighteenth birthday: and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice." Lord Fraser of Tullybelton gave his approval to "every word" of this passage in Gillick [30] where the House of Lords held that, if a female under the age of sixteen years has sufficient intelligence and maturity to understand the nature of and need for contraceptive treatment, she has the legal capacity to obtain contraceptive treatment notwithstanding the objections of her parents. Other cases have also held that a minor of sufficient intelligence and maturity can give a lawful consent to acts which require consent as a condition of their legality [31] . Modern case law makes it impossible, therefore, to assert that parents have a natural right of almost absolute control over the person, education, conduct and property of their children. Consequently, the power of parents to consent to medical treatment and surgical procedures in respect of their children can no longer be regarded as existing as an incident or corollary of such a right.

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