Wiltshire News

Tuesday, 26 July 2011

Jamie (Special Medical Procedure)[2011] FamCA 248 (6 April 2011)

This is a recent case where a boy aged 10 years and 10 months had been diagnosed by medical experts with gender identity disorder.

The child “had, been known exclusively as a girl, wearing girls’ clothing, being addressed as a girl by classmates and teachers, using the girls’ toilets, and sleeping in the girls’ dormitory at camp, and generally presenting as a very attractive young girl with long blonde hair”.

The child’s parents applied to the court for an Order that the child be able to begin puberty suppressant hormones immediately.

The court was forced to consider the following sections of the Family Law Act 1975 (hereinafter referred to as “the Act”).

Section 60B(1) of the Act sets out the objectives of the Act in relation to children. One of the objectives is to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

In deciding a particular parenting order, the best interests of the child are the paramount consideration and are listed at Section 60CC(1). The primary and additional considerations for the court in determining what is in the child’s best interests are set out in Section 60CC(2) and (3).

This case referred to previous cases which have shown that it is generally within the realm of a parent’s responsibility to be able to consent to medical treatment for and on behalf of their child. However, there are procedures referred to as “special medical procedures” that go beyond the responsibility of parents and require an Order of the Court. There was no dispute in this case that the procedures proposed fell within the definition of special medical procedures.

Section 67ZC of the Act states that the court has jurisdiction to make orders relating to the welfare of children. The child’s best interests remain the paramount consideration.

This case sets out the procedure to be followed in applications for Medical Procedures which is contained in Chapter IV, Division 4.2.3 of the Family Law Rules 2004 (hereinafter referred to as “the Rules”).

Rule 4.09(1) provides that evidence must be given “to satisfy the court that the proposed medical procedure is in the best interests of the child”.

Rule 4.09(2) provides that evidence must be included from “a medical, psychological or other relevant expert” to establish:

• 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:

• • if the procedure is carried out; and
  • if the procedure is not carried out;

• the nature and degree of any risk to the child from the procedure;

• 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:

• • is currently incapable of making an informed decision;
  • 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; and
  • whether the child’s parents or carer agree to the procedure.

The Courts will then also look at whether any other cases where similar treatments have been permitted or denied.

In this particular case the Federal Magistrate made an order that stage one of the treatment start immediately. The Federal Magistrate did not make orders for stage two of the treatment to begin as both the Family Report Writer and the ICL were supportive of the stage one treatment starting immediately however did not support stage two as it was not due for some five to six years. The Federal Magistrate explained that stage two should be “considered closer to that time, to take into account prevailing or intervening circumstances that may not be predicted when the child is at this stage still on ten.”

If you have a child with special medical needs please do not hesitate to contact the team at Wiltshire Lawyers to receive further advice.


Emma Ludeke
Family Lawyer
Wiltshire Lawyers

Liability limited by a scheme approved under Professional Standards legislation.

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