The High Court of Australia decided in Marion's case in 1992 that children can be lawfully sterilised in the absence of 'malfunction or disease' only with court authorisation and only if it is in the children's best interests. The High Court framed its decision in terms that apply not only to non-therapeutic sterilisation procedures but also to a broader category of other disputed or ethically contentious and often irreversible special medical procedures that are either life threatening or carry significant risks for the children's future health and wellbeing.
The law requires that the children's best interests be the paramount consideration when courts decide whether to authorise proposed special medical procedures. The concept of the best interests of the child however is broad and indeterminate. It is vulnerable to criticism that it can be interpreted and applied in differential and potentially discriminatory ways, especially to marginalised children. Most special medical procedure applications in Australia as elsewhere commonly involve children with disabilities. Law reformers have noted apparent discrepancies in the way Australian courts and tribunals decide special medical procedure applications, in particular sterilisation applications in relation to girls and young women with intellectual disabilities.
This study examines how the concept of the best interests of the child is interpreted and applied in special medical procedure applications to Australian courts and tribunals. It explores the hypothesis that the concept of best interests is a complex multidimensional social construct subject to different and divergent influences. The study investigates the structural and other factors impacting upon those who are called upon to interpret and apply the concept in practice.
Commentary about the best interests of children subject to special medical procedure applications has focused almost invariably on the reported judgements of the legal decision-makers. This study takes an alternative approach. It focuses instead on the written reports that were submitted to the courts and tribunals in evidence. It regards the 'reporters'- a diverse group of medical and other professionals, family members and others who provided the legal decision-makers with the evidence about the children and their circumstances as the central interpreters of the children's best interests. It examines all the special medical procedure applications made to the Family Court of Australia (the Court) and the state guardianship tribunals of New South Wales and South Australia (the Tribunals) during the period 1992 through 1999. The analysis is based on 495 written reports submitted in evidence by 351 reporters in relation to 48 children who were subject to special medical procedure applications during the study period.
This study comprises two approaches to understanding how the concept of the best interests of the child is applied and interpreted. It uses, firstly, descriptive and multivariate statistics to describe the structural and contextual factors that influence how reporters interpret and apply the concept of the best interests of the child. It explores the hypothesis that the type of legal forum shapes the type of reporters whose reports are submitted in evidence, the types of information they take into account and how they frame the problem to be addressed by the proposed procedure. It profiles the children who were subject to applications and their families, including their social circumstances and access to support services. It sets out to identify whether they shared any characteristics that might have prompted the applications and that might distinguish them from the vast majority of their peers. It also sets out to identify whether the children who were subject to applications to the Court and the Tribunals were different in some way that might explain the apparent discrepancies in the legal decisions. It describes the reporters' function in the legal forum including whether they gave opinions about the merits of the proposed procedures and whether they are influenced by their personal and professional characteristics including their occupational status, work settings and service relationships with the children and their families. It examines, secondly, how reporters interpret the concept of the best interests of the child and give it substance by reference to second order guiding principles. It submits their written reports to a thematic textual analysis to better understand how reporters portrayed the children subject to application and their families and how they interpreted the children's needs and rationalised whether the proposed procedures were in the children's best interests or otherwise.
The analysis indicates that applications might be prompted by factors other than the nature and extent of the children's disabilities or clinical presentation. The majority of children subject to application had disabilities but comprised only a very small subset of otherwise comparable children with disabilities. They had varying degrees of disablement. Most families of children subject to applications experienced disadvantage against a range of indicators of social and economic wellbeing. Most used family support services such as respite care but almost half the families offered specialist services that were focused on their children's particular developmental needs declined the offer.
The type of legal forum shaped both the types of reporters who got an opportunity to have their say and also what they said in their reports. There were gaps in the information and perspective submitted to the Court and Tribunals in evidence. Medical reporters predominated, both numerically and because the Court, and to a lesser extent the Tribunals accorded them standing and authority that other, non-medical reporters were not given. Non-medical information and perspective was marginalised accordingly. There were important differences between what medical and non-medical reporters had to say however medical and non-medical reporters alike put a high value on promoting the preservation of the children's family relationships. They regarded a reduction in the 'burden of care' as fundamental to that end and framed the problem to be addressed by the proposed procedure within the context of the children's family circumstances. They supported proposed special medical procedures that were congruent with their assessments of the children's parents' wishes, resilience and resourcefulness. The analysis of the written reports indicated a lack of rights based narrative that emphasised the children's right to bodily integrity. Descriptions of the children canvassed their social rather than medical needs and reporters framed the proposed medical procedures as solutions to the social problems confronting the children and their families.
The analysis suggests that special medical procedure applications over the study period were a form of crisis intervention. It highlights the importance of improving relationships between the legal and disability service delivery systems to ensure that children and their families are offered early and ongoing support services calculated to strengthen their resilience and problem solving capacities. It also suggests the need for broader systemic and policy responses that reduce adversarialism and promote children's right to be heard in matters affecting them.