Who gives consent for Special Treatment of children?

30-August-2011 Family Law By Simone Green



Who decides what is right for a child? The parents or the Government? Both!

By Australian law parents jointly share the responsibilities concerning the care, welfare and development of their children. Parental responsibility is clearly defined in the Family Law Act 1975 under Section 61B. This includes, in relation to a child: “(a) All the duties, powers and responsibility and authority which, by law, parents have in relation to children.”


However the Courts can legally override a parent’s decision. Section 67ZC(1) of the Family Law Act states that the “Court also has jurisdiction to make orders relating to the welfare of children.”  This responsibility between parents and the Courts can present complications as demonstrated in these two cases:


1. Sterilisation of a child

 previous Family Court case – Marion’s Case – found that there were limits to the scope of parental power. Interestingly, Marion’s Case held that the decision to authorise sterilisation of an intellectually disabled minor fell outside the ordinary scope of parental powers under the Act. However, the Family Court could authorise this as a procedural safeguard to ensure the best protection of the interests of the child.
There is a body of Family Court decisions considering whether to approve or reject authorisation for the therapeutic and non-therapeutic procedures and treatments to children.

2. Can parents determine treatment of a premature baby?


In another case, an application was made to the Court seeking a declaration as to whether or not the instructions provided by the parents to the hospital and its staff were a “special procedure”.

The facts were tragic. A little baby, the subject of this application, was born prematurely at 27 weeks and had required ongoing assistance to breathe since birth. The baby had suffered severe and irreversible brain damage.


The parents sought to:
(a)   Remove and not replace the endotracheal tube from the airway of the baby; and
(b)   If pain or respiratory distress occurred, to provide palliative care and administer such medication as necessary and proper.

The Family Court held that the particular facts and principles of law did not qualify as a “special case” that required the Court’s authorisation. The Court affirmed the decision by the parents and the Hospital to apply and noted that in circumstances of ambiguity, it is appropriate to seek Court Orders in relation to treatment decisions.




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