By Tamara James, Lawyer and Jack Robson, Law Graduate  

In a recent decision before Justice Harris of the Victorian Supreme Court, the Court’s cautious approach to exercising the parens patriae jurisdiction was further illustrated, particularly where the orders sought to involve ‘forceful’ means of restraint.

When exercising the Court’s parens patriae jurisdiction, Harris J confirmed the Court’s tendency to enforce the least invasive means of treatment that can be pursued for the subject child’s benefit and  illustrated that the Court will give consideration to all of the relevant principles and facts before making any orders, including rejecting consent orders.

Harris J’s reluctance to impose orders seeking restraint illustrated the discretion in exercising the Court’s parens patriae jurisdiction and the Court’s overwhelming responsibility to exercise that power for the appropriate care and protection of the child.

The application

Beverley (a pseudonym) is a 15 year old who, at the time of the original application by the Secretary, was 31 weeks pregnant and expected to give birth at or around 38 weeks of pregnancy. Beverley was the subject of a ‘care by secretary order’ pursuant to section 289 of the Children, Youth and Families Act 2005 (Vic), which has the effect of giving the Secretary sole parental responsibility and makes the Secretary Beverley’s guardian to the exclusion of all other people.

The application brought by the Secretary concerned medical treatment and procedures required in connection with Beverley’s pregnancy. Beverley had not agreed to all medical recommendations (the Court noted Beverley exhibited a severe aversion to needles).  Beverley had been assessed by medical practitioners as lacking competency to make decisions for her medical care due to her age and a mild intellectual disability. The Secretary, pursuant to the ‘care by Secretary’ order, sought orders authorising the use of restraints where necessary to facilitate the medical treatment.

The treatment identified for the potentially necessary use of restraints included:

1. blood testing;
2. birth by planned caesarean section under general anaesthetic; and
3. Insertion of a reversible method of birth control, during the caesarean operation.

At the original hearing, Justice Gray made a determination concerning the blood tests, having recognised Beverley’s strong aversion to needles, and that the blood tests would be in the best interests of Beverley. However, Gray J did not make orders in relation to the use of restraints, determining that the anticipated risks which the blood tests sought to mitigate  were not urgent enough (at the time) to warrant the use of restraints.

Following this original motion, Harris J took over carriage of the proceedings from Gray J.

Following a number of motions concerning the facilitation of medical treatment, consent orders were presented to the Court of which the most relevant orders sought were:

1. A declaration that where a child is not Gillick competent to provide consent, the Secretary is authorised under s172 of the Children Youth and Families Act 2005 (Vic) to provide parental consent for the use of restraint by treating medical practitioners.
2. The restraint to be used in specific circumstances, namely:
   1. The use of oral medication;
   2. Safe confinement; and
   3. the use of general anaesthetic

to facilitate medical examination and treatment including for a planned caesarean     section, post-natal care and insertion of contraception.

Harris J was not willing to make the declaration and orders sought. The hearing proceeded to determine what exact medical procedures were necessary, and consequently the orders required to ensure the medical team had the necessary powers to assist Beverley.

While this judgment deals with issues concerning the Secretary’s power to authorise further placement in a secure welfare service, this analysis focuses on the extent of the Court’s parens patriae jurisdiction, and the extent to which parental consent can apply.

Parens Patriae Jurisdiction

In his earlier decision, Gray J considered the decision in Re Rosie (No 3),[1] in which Meek J granted an application for orders in the parens patriae jurisdiction of the NSW Supreme Court authorising the necessary restraint of a child to administer psychotropic medication. In that decision, Meek J considered that the Court ought to intervene where medical advice was universally accepted by the relevant practitioners.

Harris J agreed that, in exercising the parens patriae power, the Court must use the power in a manner directed to the appropriate care and protection of the child. In particular, Harris J emphasised the need to tailor the focus of the power to the particular circumstances of the child when considering the appropriate orders to be made under the power.

Parental Consent to Surgical Intervention

In his decision, Harris J observed the two seminal cases of Gillick[2] and Marion’s Case,[3] to determine the consistent overriding principle for limiting parental power. His Honour ultimately found this overriding principle to be the best interests of the child that lacked Gillick capacity. Specifically, in the seminal cases it was determined that Court authorisation of a medical procedure should be required where the contemplated procedure is of such significance that the Court’s authorisation is a necessary safeguard against potentially severe physical and psychological consequences. Harris J identified the risk of a mistaken lack of Gillick capacity and the necessity that a specific mode of child delivery be compelled as being important considerations. While Beverley had been assessed as not have Gillick competence, it appeared likely to be a borderline case in circumstances where Beverley was able to give legal instructions and had a basic understanding of the proposed medical treatments and process for giving birth.

Ultimately, Harris J found that authorising the medical restraint to facilitate the respondent undergoing a caesarean was beyond the scope of parental consent. Further, Harris J only authorised the use of medical restraint if necessary during vaginal labour (including with medical assistance and interventions such as an epidural) with the intervention of caesarean section only if medically necessary.

End Note:

The application was listed further to enable the Court to be updated on Beverley’s situation.  The Court was informed that Beverley gave birth on 26 January 2025 without the need for intervention by caesarean section and is engaging well with her baby. 

[1] [2023] NSWSC 37.

[2] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.

[3] Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218.