special medical procedures, sterilisation of minors and the role of the family court

199PSYCHIATRY, PSYCHOLOGY AND LAWVOLUME 14 NUMBER 2 2007 pp. 199–206

Correspondence to: The Honourable Justice Mushin, Commonwealth Law Courts, 305 William Street, Melbourne VIC 3000,Australia. E-mail: [email protected]

Special Medical Procedures, Sterilisation of Minors and the Role of the Family Court

The Honourable Justice MushinFamily Court of Australia

Generally parents have the power to consent to medical treatment of their child where the child isincapable of giving consent.1 This ‘parental power to consent to medical treatment on behalf of a childdiminishes gradually as the child’s capacities and maturity grow and … this rate of development depends

on the individual child’.2

Parents’ Power to Consent to MedicalTreatment of Their ChildrenA child will be considered capable of givinginformed consent when he or she ‘achieves a suffi-cient understanding and intelligence to enable himor her to understand fully what is proposed’.3 Achild’s ability to consent has not been a majorissue in medical treatment cases, particularly steril-isation cases, as many of the children involved hadsevere intellectual disabilities. However, the testfor full understanding in order to consent appearsto be set quite high. In the case of Re A,4 JusticeMushin stated that:

… A understands the problem and, in generalterms, the way in which it is proposed thatsuch problem be resolved and further, that hehas expressed a desire that such resolutiontake place. However, I am not satisfied that Ahas sufficient capacity and maturity to fullyappreciate all aspects of the matter and to beable to assess objectively the various optionsavailable to him.5

There are, however, limits on this parental powerand in certain circumstances parents cannotconsent to the performance of medical treatmentof their children. Notably, ‘the overriding crite-rion of the child’s best interests is itself a limit onparental power’.6

The watershed case in this area was Secretary,Department of Health and Community Services vJWB and SMB (‘Marion’s case’)7 in which the HighCourt considered whether parents could consentto the sterilisation of their intellectually disabledchild. The High Court concluded that courtauthorisation for such a procedure is necessary as aprocedural safeguard, with the majority saying:

As a starting point, sterilisation requiresinvasive, irreversible and major surgery. But sodo, for example, an appendectomy and somecosmetic surgery, both of which, in ouropinion, come within the ordinary scope of aparent to consent to. However, other factorsexist which have the combined effect ofmarking out the decision to authorise sterilisa-tion as a special case.

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Court authorisation is required, first, because ofthe significant risk of making the wrong decision,either as to a child’s present or future capacity toconsent or about what are the best interests of achild who cannot consent, and secondly, becausethe consequences of a wrong decision are particu-larly grave.8 (emphasis added)

The majority of the High Court went on to notethe serious effects of an inappropriate sterilisation:

The gravity of the consequences of wronglyauthorising a sterilisation flows both from theresulting inability to reproduce and from thefact of being acted upon contrary to one’swishes or best interests. The fact of violation islikely to have social and psychological implicationsconcerning the person’s sense of identity, socialplace and self-esteem.9 (emphasis added)

The majority also noted that ‘court involvementensures, in the case of conflict [between theparents’ interests and the child’s interests] that thechild’s interests prevail’.10

It is important to note that the sterilisationrequiring court authorisation decided upon inMarion’s Case is sterilisation which is not for thepurposes of treating a malfunction or disease. Thisis often referred to as nontherapeutic sterilisationthough the High Court noted the uncertainty ofthis distinction.

The Jurisdiction of the Family Court inMedical Procedure CasesThe Family Court’s power to intervene andrequire court authorisation for certain medicalprocedures to be performed on children arisesfrom a ‘welfare’ power in relation to children. TheHigh Court in Marion’s Case found that the 1983amendments to the Family Law Act 1975 (Cth)had effectively invested the Family Court withjurisdiction over the welfare of children.11

Importantly however, this power, nowarising from section 67ZC of the Act, is consti-tutionally limited so that it does not apply to ex-nuptial children.12

It has been noted by former Chief Justice of theFamily Court, Alastair Nicholson and others that:

The Court’s authority and obligation to deter-mine medical procedure cases has been shapedmainly by a series of decisions concerning appli-cations, usually by parents, for the sterilisationof young women whose considerable intellec-

tual disability prevents them giving informedconsent to the procedure.13

There are, however, other medical procedures thathave been found to fall within the jurisdiction ofthe Court and require its authorisation. Suchmedical procedures include:

• gender reassignment of a teenage child.14

• performance of cardiac surgery on an 11-year-old child, on application by the PublicAdvocate, in the absence of parental consent.15

• The removal of a child’s bone marrow fortransplant into the child’s relative.16

The Legal Frameworkof Lawful SterilisationAs the overwhelming majority of cases involveyoung women with intellectual disabilities, ‘steril-isation of children in the Australian context isrelated primarily to two characteristics — genderand disability’.17

Bearing in mind the grave consequences ofsterilisation and the rights and interests at stake,the Court has generally taken a cautionaryapproach to such applications. In a leading UnitedStates case, Re Grady,18 Handler J said:

Sterilisation may be said to destroy an impor-tant part of a person’s social and biologicalidentity — the ability to reproduce. It affectsnot only the health and welfare of the individ-ual but the wellbeing of all society. Any legaldiscussion of sterilisation must begin with anacknowledgement that the right to procreate isfundamental to the very existence and survivalof the race.19

Brennan J commented in Marion’s Case that:

Sterilisation of an intellectually disabled childrequires justification of a compelling kind, forinvoluntary sterilisation is a serious invasion ofthat child’s personal integrity and a graveimpairment of that child’s human dignity.20

A consideration of the sterilisation of disabledwomen and children should also take into consid-eration the relevant international instruments.Article 23.1 of the United Nations Convention onthe Rights of the Child states:

State Parties recognise that a mentally or physi-cally disabled child should enjoy a full anddecent life, in conditions which ensure dignity,

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promote self-reliance and facilitate the child’sactive participation in the community.21

The United Nations Declaration on the Rights ofMentally Retarded Persons sets out that:

The mentally retarded person has a right toproper medical care and physical therapy and tosuch education, training, rehabilitation andguidance as will enable him to develop hisability and maximum potential.22

As discussed above, the Family Court has powerand jurisdiction to authorise medical procedureson children including sterilisation. In addition tothis, New South Wales and South Australia (priorto Marion’s Case) legislated that sterilisation ofchildren is prohibited without the approval oftheir respective Guardianship Tribunals.

Data from 1992 to 1998 show that the major-ity of applications for sterilisation are approved,and further that the Family Court is more likely toapprove sterilisation compared to theGuardianship Tribunals of New South Wales andSouth Australia (with the Family Court approving90% of applications and the tribunals approvingonly 53%).23

There is potential of forum shopping inthree different jurisdictions — the FamilyCourt, the state Supreme Courts (which exercise‘parens patriae’ jurisdiction, a common lawjurisdiction for the protection of children andpersons of unsound mind), and state adminis-trative tribunals. This is a problem the VictorianBar has recently highlighted in its submission inresponse to the Victorian government’s draft billconcerning the sterilisation of children withintellectual disabilities.24

The most appropriate forum for determiningsterilisation cases remains a contested issue. Formerpresident of the Guardianship Board of New SouthWales, Nick O’Neill, believes that tribunals consistof members with ‘considerable experience andexpertise in relation to the issues raised in thesecases’ while more recently, the Victorian Barexpressed concern that administrative tribunals maynot have the experience of Family Court judges.25

However, in Marion’s Case the High Court notedthe limitations of the court system stating:

…we acknowledge that it is too costly for mostparents to fund court proceedings, that delay islikely to cause painful financial inconvenienceand that the strictly adversarial process of thecourt is very often unsuitable for arriving at this

kind of decision. These are clear indications ofthe need for legislative reform, since a more appro-priate process for decision-making can only beintroduced in that way.26 (emphasis added)

Within the Family Court context, the issues to bedetermined in medical procedure cases wereoutlined in Marion’s Case:

• the threshold question is whether a child has thecapacity to consent to the medical procedure;

• where a child is incapable of consenting andthe proposed medical procedure is outside ofthe child’s parents’ power to consent, courtintervention and authorisation is required;

• in this situation, the child’s best interests arethe paramount consideration.

As former Chief Justice Nicholson and othersnoted, the first issue, that of the ability of the childto consent, has not been a major issue in sterilisa-tion cases as all the young women have beenseverely intellectually disabled.

Further, in sterilisation cases the ‘test’ seems tobe whether sterilisation is in the best interests ofthe child, with the availability and feasibility ofalternative treatments being one consideration asto their best interests:

The function of a court when asked to authorisesterilisation is to decide whether, in the circum-stances of the case, that is in the best interests ofthe child. We have already said that it is notpossible to formulate a rule which will identifycases where sterilisation is in his or her bestinterests. But it should be emphasised that theissue is not at large. Sterilisation is a step of lastresort. And that, in itself, identifies the issue as onewithin narrow confines.27 (emphasis added)

The concept of ‘last resort’ was characterised asfollows:

In the context of medical management, ‘step oflast resort’ is a convenient way of saying thatalternative and less invasive procedures have allfailed or that it is certain that no other proce-dure or treatment will work.28

This last resort approach and the factors proposedby Nicholson CJ for determining the best interestsof the child have been codified in the Family LawRules 2004.29 The rules give added emphasis to thesocial and psychological effects on the child.Interestingly, the rules also focus on the child’scapacity to consent and whether the child is likelyto develop such a capacity within the time in

SPECIAL MEDICAL PROCEDURES AND STERILISATION OF MINORS

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which the procedure should be carried out. Therules are set out as follows:

Rule 4.09(1): If a Medical ProcedureApplication is filed, evidence must be given tosatisfy the court that the proposed medicalprocedure is in the best interests of the child.Rule 4.09(2): The evidence must includeevidence from a medical, psychological or otherrelevant expert witness that establishes thefollowing:

(a) the exact nature and purpose of theproposed medical procedure;

(b) the particular condition of the child forwhich the procedure is required;

(c) the likely long-term physical, social andpsychological effects on the child:

(i) if the procedure is carried out; and(ii) if the procedure is not carried out;

(d) the nature and degree of any risk to the childfrom the procedure;

(e) if alternative and less invasive treatment isavailable — the reason the procedure is recom-mended instead of the alternative treatments;

(f) that the procedure is necessary for thewelfare of the child;

(g) if the child is capable of making aninformed decision about the procedure — whether the child agrees to the procedure;

(h) if the child is incapable of making aninformed decision about the procedure —that the child:

(i) is currently incapable of making aninformed decision; and

(ii) is unlikely to develop sufficiently to be ableto make an informed decision within thetime in which the procedure should becarried out, or within the foreseeable future;

(i) whether the child’s parents or carer agree tothe procedure. (emphasis added)

The inclusion of psychological effects on the childof sterilisation in these rules is noteworthy. Thisacknowledges that a child’s best interests includehis or her psychological wellbeing as well as thefact that sterilisation is not merely a medical issue.As the majority said in Marion’s Case:

… the consequences of sterilisation are notmerely biological but also social and psycho-logical. The requirement of a court authorisa-tion ensures a hearing from those experiencedin different ways in the care of those withintellectual disability and from those with

experience of the long term social and psycho-logical effects of sterilisation.30

The psychological effects on a child were also consid-ered to be important when determining a child’sinterests in the gender reassignment case of Re A:

The evidence of the psychologist persuades methat there is a probability of very seriousnegative consequences to A if I reject the appli-cation … I am satisfied that A’s sense of socialand biological identity and self esteem dependto a very large extent upon the performance ofthe procedure …31

Importantly, in Re Katie Warnick J asserted thatthe issue of ‘last resort’ does not mean that

… every possible management technique,whether accompanied by undesirable featuresor risks to health, must be tried before authori-sation can be given.32

The Full Court’s reasoning in P and P hasbeen criticised as undermining the best interestsand particularly the last resort principle. In thatcase the Full Court said:

If the reality is, as it is in this case, that theperson concerned cannot reasonably beexpected to proceed with a pregnancy to fullterm and pregnancy itself is detrimental to herwelfare, then we can see little value in subject-ing her to laborious and unnecessary training toenable her to manage menstruation, particularlywhen it is highly unlikely that this process willbe effective …33

Although the Court was careful to note thatmenstrual management cannot be the sole factorjustifying sterilisation,34 the focus on menstrualmanagement reveals underlying assumptionsabout the value of menstruation and reproductionwhich may not be in the child’s best interests.Helen Rhoades comments:

The problem with modelling menstrual manage-ment for women with intellectual disability is thatthe principal value of menstruation in our societylies in its association with reproduction … Whenreproduction is considered not to be a viableoption for women, courts relying on an ‘objective’assessment of ‘normal life’ have tended not tocharacterise menstrual management training as aworthwhile investment of time and energy. Insterilisation cases, where menstrual managementtraining is approached from the point of view ofmedical experts and the exhausted parents,


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menstruation tends to be discussed as a ‘toiletingchore rather than a significant life event’.35

Another underlying assumption is that intellectu-ally disabled young women do not understand orappreciate menstruation or reproduction. There isevidence, however, that the sexual awareness andinterest of the intellectually disabled develop inthe same way and in the same sequence as non-disabled children.36

The emphasis on the best interests of the childhas been considered with reference to the positionof its caregivers. In P and P the court stated:

Although the primary focus must always remainon the child, the position of caregivers is relevantinsofar as it reflects upon their capacity to carefor the child. We think this is particularly sowhen the primary caregiver is the parent …37

This not only means that authorisation willusually be granted where the parents’ wishesconsider the best interests of the child or are not inconflict with the best interests of the child,38 butthat the parents’ burden of caring for the child willbe considered. Warnick J in Re Katie found that‘the interests of Katie are inextricably linked withthe ability of her parents to cope with the burdensof Katie’s care’.39 This involved the emotionalburden where the procedure is not authorised andthe physical burden for care of Katie.

Hilary Brown and Helen Smith suggest anincreased focus on the wishes of the child to deter-mine its best interests:

Operating on the basis of ‘what would this persondo if they valued themselves?’ as opposed to ‘whatwould this person do if they are to be valued byothers?’ would go some way towards incorporat-ing a subjective stance, even where the person isunable to speak for themselves.40

Helen Rhoades agrees, stating:

The shift away from an assessment whichexcludes the perspectives of the women withdisabilities would provide a safeguard againstthe danger of removing a young woman’suterus because menstruation is believed to be‘objectively’ useless to her.41

The focus on the child’s best interests extendsbeyond judicial considerations. There are proto-cols in place in Victoria and Queensland to helpinterested parties, such as families and doctors,consider whether sterilisation is in the best inter-ests of a child. A standard approach is set out

which outlines whether court authorisation isrequired, when to contact the Court, considera-tion of alternative options, participation incounselling and alternative dispute resolution andthe importance of seeking further informationfrom appropriate agencies.

The Human Rights and Equal OpportunityCommission consider these protocols to havethree main purposes, being:

• to secure support services for the child andfamily which will assist them with the care andmanagement of their child. This provision ofservices seeks to ensure that applicationsproceed to court only as a last resort after alter-native options have been explored;

• to ensure, if applications do proceed to court,that the court is provided with comprehensiveevidence about the less invasive alternatives tosterilisation;

• to neutralise the impact of the adversarialnature of court proceedings.42

The Full Court of the Family Court in P and Prejected the ‘but for’ test which had been appliedby the trial judge. This test considered whethersterilisation would occur but for a child’s intellec-tual disability. It applied so that where a nonintel-lectually disabled child would not be sterilised, anintellectually disabled child should also not besterilised. By rejecting this ‘but for’ test, the FullCourt highlighted intellectual disability as animportant and defining characteristic.

In her analysis of P and P, Helen Rhoadesasserts that ‘central to the Full Court’s reasoning isan assumption that the “immutable characteristic”of an intellectual disability signifies a lack of needfor fertility’.43 Rhoades is concerned about theassumptions and perceptions of intellectualdisabilities and their potential use to impingeupon the rights of intellectually disabled women:

The conflation of ‘intellectual disability’ with arange of social characteristics, such as the inabil-ity to nurture a child and the lack of need forfertility, has been a common feature of lawsauthorising involuntary sterilisation of womenwith intellectual impairments throughout thetwentieth century.44

… the Full Court has chosen to invoke, andreinforce, the same old stereotypes. Womenwith intellectual impairments, even those whocannot ‘live and interact’ independently in the


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community, are not a homogenous undifferen-tiated group …45

… the effect of the Full Court’s reliance on thebiological ‘fact’ of impairment as indicating aneed for sterilisation is to reproduce an essen-tialist stereotype of women with intellectualdisability which accepts handicaps such as lackof prospects of a relationship and children as a‘natural’ consequence of their impairmentrather than [a social construction].46

Warnick J in Re Katie, followed P and P’s rejectionof the ‘but for’ test and considered the child’sintellectual disability when assessing the ‘compar-ative value’ of her reproductive abilities to thedetriment of menstruation. He held:

The loss of the ability to reproduce for hercannot be compared with that loss for a personof normal capacities who might, to avoid suchloss, be willing to put up with a great deal ofpain and discomfort.47

Case SummariesThe following cases illustrate the circumstances inwhich the Court has allowed applications byparents or guardians of a child for the authorisa-tion of the child’s sterilisation.

Marion’s Case48

Marion’s Case remains the ‘watershed’ case thatidentified the Court’s power in relation to specialmedical procedures. It was the first application byparents for a Court order authorising the sterilisa-tion of their child. The child in question in thiscase, ‘Marion’, was aged 14 years and sufferedfrom mental retardation, severe deafness andepilepsy. She had an ataxic gait and behaviouralproblems and was unable to care for herself.

P v P 49

The child in question in this case, ‘Leslie’, wasintellectually disabled and suffered from severeepilepsy. She disliked menstruation and hadtrouble independently managing it. The Courtfound that Leslie may be able to ‘consent’ to sexualintercourse but that pregnancy would not be inher best interests. Further, she would not be ableto understand the role of a parent.

Re Katie 50

Katie, the child in question, was aged 16 years attrial and suffered from athetoid cerebral palsy, in

the form of spastic quadriplegia and secondaryepilepsy. All her personal hygiene was taken care ofby her parents. Since Katie began menstruating (2years before the case was heard) she suffered moodswings, tiredness and pain. The Court found thatKatie did not understand reproduction, contra-ception, pregnancy or birth.

Another factual scenario which has attracted theCourt’s jurisdiction over authorising special medicalprocedures is illustrated in the case of Re A in whichauthorisation was granted for a sex reassignmentprocedure to be performed on a teenager.

Re A51

This case concerned a 14-year-old, referred to asA, who suffered from a condition know ascongenital adrenal hyperplasia; that is, while Awas born a genetic female ‘he’52 had an extremedegree of masculinisation of the genitaliabecause of an abnormality in the adrenal gland.A underwent genital reconstruction to give afeminine appearance but after subsequent inade-quate hormone treatment resulting in recurrentmasculinisation, A felt he would prefer to live asa male and that male gender assignment shouldbe performed. A’s mother (with A’s father agree-ing) made the application seeking authorisationfrom the court for A to undergo the proceduresinvolved in sex reassignment.

The Court, comprising Justice Mushin, was notsatisfied that A had sufficient capacity and maturityto fully appreciate all aspects of the matter and toassess objectively the various options available tohim. Justice Mushin found that the proposed treat-ment was outside the scope of parental consent andthat court authorisation as a procedural safeguardwas necessary due to the nature of the proceduresand protection of the best interests of the child.Justice Mushin also found that the best interests of Ashould be considered in light of the consequences toA if the Court did or did not grant the application.A was suicidal and undergoing a great deal of stressand anxiety associated with the fear of beingprevented from living life as a man as he wished todo. It was held that there would be serious negativeconsequences to A if the application was not granted.

Another procedure that has been treated by thecourt as a special medical procedure is the removalof bone marrow from a child for the purposes oftransplanting it into the body of a relative of thechild. In the recent first instance case of Re Inaya


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(Special Medical Procedure);53 however, JusticeCronin questioned this classification.

Re Inaya involved an application by theparents of a 13-month-old child for an orderauthorising the removal of bone marrow from thechild to be transplanted into her 7-month-oldcousin, who would otherwise die from infantileosteopetrosis. Section 14 of the Human Tissues Act1982 (Vic) (‘the Victorian Act’) provides thatparents may consent to such a procedure if thebone marrow recipient is a sibling or parent of thechild. The removal of human tissue from a childfor transplant into someone other than a sibling orparent, however, is an offence under section 44(1)unless authorised by law according to section44(5)(b).

This case raised the following questions:

• Is the removal of human tissue from a child,who because of age cannot validly consent, aspecial medical procedure? — That is, is itoutside the scope of parental responsibility?

• Can the Court make a declaration that parentsmay consent to such a procedure?

• Can the Court make a parenting order inrelation to such a procedure?

Justice Cronin held in this case that the earlierdecisions of Re GWW v CMW,54 which classified abone marrow harvest as a special medical proce-dure, and Ekonomou v Ekonomou,55 which appliedRe GWW v CMW, were incorrectly decided. HisHonour distinguished a bone marrow harvestfrom sterilisation, since the former is an invasiveyet atraumatic procedure involving the removal ofregenerative tissue and no long-term effects,whereas the latter is invasive, permanent andirreversible. Justice Cronin found that given thenature of a bone marrow harvest and the fact thatthe Victorian Act permits parents to consent to theprocedure, so long as the donor is a sibling orparent of the child, it cannot be classified as aspecial medical procedure in the sense of ReMarion. Justice Cronin found that but for thelimitation imposed by the Victorian Act consent-ing to a child undergoing a bone marrow harvestwould be within the scope of parental responsibil-ity. His Honour held that the Victorian Act wasinconsistent with the Family Court’s power withrespect to parental responsibility and, to the extentof this inconsistency, it was therefore invalid.

Taking into consideration the long-termpsychological benefits to the child of allowing the

application, and the psychological detriment tothe child if the application were dismissed (that isthe damage caused when the child grows up tolearn that her cousin’s death could have beenprevented had she donated her bone marrow),Justice Cronin found that it would be in the bestinterests of the child for the application to beallowed. His Honour made parenting orderswhich authorised the procedure in question anddeclared that the child’s parents were authorisedto consent to it.

ConclusionAs can be seen from the examples I have provided,special medical procedure cases are a complex andevolving aspect of the court’s work, one that isfraught with ethical and moral dilemmas andattracts divergent views. The role of the FamilyCourt in deciding these applications requires asensitive consideration of the best interests of thechild and particularly the psychological implica-tions of allowing or not allowing a procedure.Because the case law with respect to specialmedical procedures developed predominantlythrough cases involving severely mentally disabledyoung women, this area of law can be expected tocontinue to evolve in step with medical researchand psychological evidence and opinion.

AcknowledgmentsThe writer gratefully acknowledges the assistanceof Joanne Lau and Laura Vines, legal researchassociates of the Family Court of Australia, in thepreparation of this article.

Endnotes1 For discussion of the sources of this parental power

see Secretary, Department of Health and CommunityServices v JWB and SMB (1992) 175 CLR 218(‘Marion’s case’) per Mason CJ, Dawson, Tooheyand Gaudron JJ at 235.

2 Ibid per Mason CJ, Dawson, Toohey and GaudronJJ at 237 referring approvingly to the propositionin Gillick v West Norfolk AHA [1986] AC 112.

3 Gillick cited approvingly in Marion’s Case at 237.4 In Re A (1993) 16 Fam LR 715.5 In Re A (1993) 16 Fam LR 715, 719.6 Marion’s Case (1992) 175 CLR 218 per Mason CJ,

Dawson, Toohey and Gaudron JJ at 240.7 Marion’s Case (1992) 175 CLR 218. 8 Ibid, 250.


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9 Ibid, 252.10 Ibid.11 Ibid, 255.12 Minister for Immigration and Multicultural and

Indigenous Affairs v B (2004) 219 CLR 365.13 Alastair Nicholson, Margaret Harrison and Danny

Sandor, ‘The Role of the Family Court in MedicalProcedure Cases’ (1996) Australian Journal ofHuman Rights 7.

14 In Re A (1993) 16 Fam LR 715; Re Alex: Hormonaltreatment for gender identity dyspheria (2004) 31Fam LR 503.

15 Re Michael (1994) 17 Fam LR 584.16 Re GWW and CMW (1997) 21 Fam LR 612.

Contra Re Inaya (Special Medical Procedure) [2007]FamCA 658.

17 Susan Brady, John Briton and Sonia Grover, ‘TheSterilisation of Young Girls and Women: Issuesand Progress’ (2001), 3. (Report commissioned bythe Human Rights and Equal OpportunityCommission.)

18 Re Grady (1981) NJ 426 A 2d.19 Ibid, 472.20 Marion’s Case (1992) 175 CLR 218 at 267.21 Convention on the Rights of the Child art 23.1.22 Declaration on the Rights of Mentally Retarded

Persons art 2.23 Brady, Briton and Grover, above n 17, 22.24 Submission by the Victorian Bar concerning the

proposed Children with Intellectual Disabilities(Regulation of Sterilisation) Bill 2006 (Vic), 16February 2007.

25 Ibid, 3. 26 Marion’s Case (1992) 175 CLR 218, 253.27 Marion’s Case (1992) 175 CLR 218, 259.28 Ibid.29 Re Marion (No 2) (1992) 17 Fam LR 336, 351.

Note, Nicholson CJ’s words are not directly repro-duced in the rules.

30 Marion’s Case (1992) 175 CLR 218, 251.

31 Re A (1993) 16 Fam LR 715, 721.32 Re Katie (1995) FLC 92–659, 82–820.33 P v P (1995) 19 Fam LR 1, 23.34 Ibid, 23.35 Helen Rhoades, ‘Intellectual Disability and

Sterilisation — An Inevitable Connection?’ (1995)9 Australian Journal of Family Law 1, 12–13.

36 Arthur A Attwell and Colleen B Jamison, TheMentally Retarded: Answers and Questions About Sex(1977).

37 P and P (1995) 19 Fam LR 1, 23.38 Marion’s Case, 253.39 Re Katie (1995) FLC 92–659, 82–817.40 Hilary Brown and Helen Smith, ‘Assertion, not

assimilation: A feminist perspective on the normal-isation principle’ in Hilary Brown and HelenSmith (eds), Normalisation: A reader for the nineties(1992) 162.

41 Rhoades, above n 35, 14.42 Brady, Briton and Grover, above n 17, 39–41.43 Rhoades, above n 35, 7.44 Helen Rhoades, above n 35, 8.45 Ibid, 9.46 Ibid, 10.47 Re Katie (1995) FLC 92-659, 82–819.48 Marion’s Case (1992) 175 CLR 218.49 P and P (1995) 19 Fam LR 1.50 Re Katie (1995) FLC 92–659.51 In Re A (1993) 16 Fam LR 715.52 In keeping with A’s wishes and practices, A was

referred to by the male pronoun throughout thehearing and in the judgment.

53 Re Inaya (Special Medical Procedure) [2007]FamCA 658 (Unreported).

54 Re: GWW and CMW (1997) 21 Fam LR 612.55 Ekonomou v Ekonomou [1999] FamCA 2403.

(Unreported, Federico J, 1 September 1999).


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special medical procedures, sterilisation of minors and the role of the family court

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