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Special Medical procedures – children with their own parental responsibility?

In a recent decision in the Family Court of Australia of Re Isaac, a 17 year old child with gender dysphoria was granted sole parental responsibility in relation to all medical decisions concerning himself. In circumstances where that the child’s parents were living overseas, were not “acting in any parenting capacity” and had chosen not to participate in the proceedings, Cronin J determined that the Court has the power to give parental responsibility to a child in relation to medical decisions.

Although in Australia, the Family Law Act provides that parents have the responsibility for medical decisions until their child turns 18 except in circumstances of adoption or marriage, the Court determined that this did not apply in this case, where the child had shown that he could make decisions for himself.

The Court has previously accepted that special medical procedures are serious medical operations that a legally competent person can consent to.

A legally competent person in these cases are known as having “Gillick competence”. The term comes from an English case of Gillick v West Norfolk and Wisbech Area Health Authority where the issue of competence and capacity of a child to make a decision was considered. In a similar case in Australia known as “Marion’s Case”, the High Court said that the law as set out in Gillick was the same as the common law in Australia.

In summary, the law provides that parental power to consent to medical treatment on behalf of a child diminishes gradually as the child’s capacities and maturity grow.

In Re Isaac, the Court held that if a child is in the period of life where they are transitioning from childhood to adulthood and it is occurring at the same time as the case is in Court and requiring a decision, the Court needs a process suitable to deal with such cases.

The Court held that in this case it was suitable to determine that a general parenting responsibility could and should be given to the child but only if the issue of whether or not the child has sufficient capacity and understanding to know what he or she is doing in respect of the treatment is first established.

Therefore, if the Court finds that a child is competent and capable of making their own decisions the Court may now give parental responsibility for a particular issue, including medical decisions, to that child.

It is not yet known how this decision will impact future decisions relating to special medical procedures.


By Nicholes Family Lawyers


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