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The Sterilisation of Girls and Young Women in Australia: issues and progress
Chapter three - a national profile of lawful sterilisation [1]
(a) the family court & guardianship tribunals
In Australia the majority of applications made for the sterilisation of girls and young women under 18 years are approved. Table 3.1 compares decisions made by the Family Court and Guardianship Tribunals. (For visual comparison see Bar Charts at pages 23-24). The Family Court of Australia and the Guardianship Tribunals of New South Wales (NSW) and South Australia (SA) have jurisdiction to authorise the sterilisation of minors. These jurisdictions are the focus of this analysis.
Table 3.I : Comparison between the Family Court and Guardianship Tribunal/s decisions in sterilisation cases between 1992-1998**
|
Decision |
Family
Court |
Guardianship |
||
|
. |
N* |
%*
|
N |
% |
| Approved |
17 |
90 |
10 |
53 |
| Not Approved |
1 |
5 |
7 |
32 |
| Withdrawn |
1 |
5 |
3 |
16 |
| Total |
19 |
100 |
20 |
100 |
** Note this Table does not include the (NSW) Supreme Court case.
*N = the actual number of cases and % = cumulative percentages
There are differences in approvals for sterilisation between the Family Court and Guardianship Tribunals (NSW & SA).
- The Family Court is more likely to approve a sterilisation procedure compared to the Guardianship Tribunals.
- Of the applications that proceed to hearing the Family Court approves 95% of applications for sterilisation compared to the Guardianship Tribunal approval rate of 43% in New South Wales and 78% in South Australia.
- The Guardianship Tribunals are more likely to have applications that are withdrawn prior to hearing compared to the Family Court.
Note: Graph shows 71% of applicatns to Family Court and Guardianship Tribunals combined are approved; 19% not approvled; 10% withdrawn between 1992 - 1998.
Note: Graph shows between 1992 - 1998 the Family Court approvals and the Guardianship Tribunal 40%.
Note: Graph shows that between 1992 and 1998 90% of Family Court decisions were approvals.
Note: Graph shows that between 1992 - 1998 53% of Guardianship Tribunal decisions were approvals
The following identify in table form the total number of approvals for sterilisation by year (see Table 3.2) and by legal forum and state (see Table 3.3).
Table 3.2 : Type of Decision by Year of Decision in Australian Courts & the Guardianship Tribunals of NSW & Sth Aust, 1992-1998.
| Decision |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
Total |
| Approved |
4* |
1 |
4 |
6# |
4** |
2 |
7 |
28 |
| Not Approved |
1 |
2 |
1 |
2 |
1## |
1 |
8 |
|
| Withdrawn |
- |
3 |
1 |
- |
- |
- |
- |
4 |
| Total |
5 |
5 |
6 |
8 |
4 |
3 |
8 |
40 |
The total number of approvals for sterilisation in both the Family Court (incl. Family Court of Western Australia) and the State Guardianship Tribunals of NSW and Sth Australia is 27, and one case was approved by the NSW Supreme Court, making a total number of 28 approvals for sterilisation of children aged 10-17 years between 1992-1998.
Notes:
# Of these 6 approvals two of them had in the first instance not been approved but on review were approved. One case was initially heard by the Guardianship Tribunal (NSW), and the application was not approved. The parents took the application for hysterectomy to the Family Court (NSW) and the Court approved the hysterectomy. In 1994 in the Family Court (NSW) a first instance decision was not to approve a hysterectomy. The decision was appealed to the Full Bench of the Family Court, and it approved the hysterectomy with reasons dated May 1995.
** One of these cases includes the Supreme Court (NSW) approval
## This decision was originally approved by the Guardianship Tribunal (SA) but was taken by the Office of the Public Advocate (SA) on appeal to the AAT (SA). The AAT reversed the decision and sterilisation was not approved.
Table 3.3 : Number of sterilisation authorisations by State by Courts and Tribunals, 1992 - 1998.
|
Forum |
VIC |
NSW
(a) |
WA |
SA
(b) |
ACT |
NT |
QLD |
TAS |
TOTAL |
|
Family Court of Australia |
3 |
7 |
1 |
2 |
None
known |
1 |
2 |
1 |
17 |
|
State
Supreme Court |
None
known |
1 |
None
known |
None
known |
None
known |
None
known |
None
known |
None
known |
1 |
|
State
Guardianship Tribunal |
Not
applicable |
3 |
Not
applicable |
7 |
Not
applicable |
Not
applicable |
Not
applicable |
Not
applicable |
10 |
|
TOTAL |
3 |
11 |
1 |
9 |
- |
1 |
2 |
1 |
30 |
The total number of sterilisations of girls and young women (up to 17 years) authorised by Courts and Tribunals in Australia during calendar years 1992 - 1998 is 28. Guardianship Tribunal/s authorised 10; Family Court authorised 17, and the NSW Supreme Court authorised one. The highest number of applications are in NSW & SA where State Guardianship Tribunal/s share jurisdiction with the Family Court. Both the SA and NSW Guardianship Tribunals also have jurisdiction to authorise sterilisation procedures for adults with decision making disabilities.
Notes:
(a) In NSW, at the time of data collection the Family Court exercised concurrent jurisdiction with NSW Supreme Court (children up to 16 years) and the Guardianship Tribunal (16 and 17 year olds). Recent amendments to NSW legislation (Children & Young Persons (Care & Protection) Act 1998 , s. 175) proclaimed 18th Dec 2000 has extended the jurisdiction of the NSW Guardianship Tribunal to include children 0-17 years.
(b) In SA, the Family Court exercises concurrent jurisdiction with the Guardianship Board. Children 0-17 years are included in both.
(b) numbers of applications by State
NSW and South Australia have a higher number of applications for sterilisation compared to other States. This suggests that families use the Guardianship Tribunal option where it is available. The table below gives the numbers of cases in each State and Territory. For a visual comparison see the Bar Chart below.
Table 3.4 : State in which an application for sterilisation arises including Family Court & Guardianship Tribunal/s
|
State |
Nos
of cases |
%
of cases |
| New South Wales |
17 |
45 |
| Victoria |
3 |
8 |
| Queensland |
4 |
10 |
| South Australia |
12 |
29 |
| Western Australia |
1 |
3 |
| Tasmania |
1 |
3 |
| Northern Territory |
1 |
3 |
| TOTAL |
39 |
100 |
Data does not include the case heard in the NSW Supreme Court
Note: Graph shows were applications came from by State and Territory. Information is available in Table 3.4
- Families are more likely to seek legal authority for sterilisation where the Guardianship Tribunal option is available. [2]
The number of sterilisation applications made to either the Family Court or Guardianship Tribunal/s (NSW & SA) is small (n=39). They can be characterised as follows:
- Parent/s usually make the application
- The applicant and/or mother always support the proposed sterilisation.
- All sterilisation applications involve girls and young women with intellectual disabilities.
- All applications are for hysterectomy.
(c) characteristics of the girls and young women subject to a sterilisation application
The girls & young women subject to sterilisation applications are not a homogenous group and have varied competencies. Not all them have severe intellectual disabilities. The severity of intellectual disability (eg; high support needs) may not be a determinative factor regarding the decision to sterilise.
- The girls and young women are aged between 10 - 17 years.
- About 45% are aged 14 years or younger at the time of the application.
- About 13% of girls have not commenced menstruation at the time of the application.
- Their competencies move along a continuum from mild intellectual disability (low support needs) to severe intellectual disability (high support needs).
- More than half the girls and young women have some form of physical and/or sensory impairment ranging from minor to significant.
- Diagnostic information identifies 37% have a congenital disability, 40% a disability of unknown aetiology, and 13% have acquired brain injury.
(d) characteristics of applicant families
The legal commentary and judgments on sterilisation cases in Australia have concentrated on the girls and young women with little or no reference to their family circumstances. An analysis of Court and Tribunal files shows that:
Household Type:
- About 65% of the girls and young women live in two parent families on a full-time basis.
- In almost 30% of families the natural father is estranged providing no financial support.
- In over 20% of families the mother (who is primary carer) has some form of physical disability or chronic illness.
- In about 10% of families the father (including step-father) has some form of physical disability or chronic illness.
- No families were of Aboriginal or Torres Strait Islander descent
- About 10% of families came from culturally and linguistically diverse backgrounds
Siblings:
- About 85% of the girls and young women have siblings.
- The age range of the siblings is from 2 - 34 years. Nearly 70% are 18 years and younger.
- About 60% of teenage siblings are males
- About 20 % of families care for more than one child with some form of intellectual disability and/or physical disability.
Socio-economic factors [3]:
- Just over half of the families live in a capital city or suburban area. About 8% live in rural/remote areas. - In two parent families about 66% of fathers (including step fathers) have full time employment. - About 45% of mothers (including foster mothers) are not employed outside the home - Just over 30% of mothers are employed on a full-time basis. - Just over 30% of families receive benefits usually supporting parent or disability benefits
Other:
- About 15% of families have been subject to some form of child care and protection intervention.
The written reports on the court and tribunal files provide little information about the types of services they use.
(e) profile of services provided to the child and family [4]
The Tribunals tended to explore these issues during the hearing process but they were not raised in applications heard in the Court. [5] The written reports provided little information about the types of services that are used, but:
- The majority of families rely on government funded services.
- Over 80% of the girls and young women attended on a full-time basis a special school for children with disabilities while the others attended a mainstream school.
- About 60 % of families had access to non-government services usually out-of-home respite, with about 15% also having in home respite.
- About 20% received some form of home help assistance during the school week.
- About 16% of families received support from local church groups (eg; youth groups).
- Specialist programs are utilised by 20% of families. Over 55% of families had been offered special programs [6]
- About 3% of families received personal counselling and support.
- About 2 % of families purchased private services . [7]
(f) primary care and type of decision
- Applications for sterilisation are made by parents or on behalf of the parents by doctors. [8]
- No applications for sterilisation are made by residential facilities, community-based agencies or statutory guardians. [9]
- All applications for sterilisation to the Family Court were authorised where the young woman resided in community-based accommodation or at a boarding school returning home for weekends and/or school holidays. In all applications where the child resides on a full time basis with her family or foster family the sterilisation was approved. All approvals are for hysterectomy. [10]
- In the Guardianship Tribunals where the child resides on a full time basis with her family or foster family applications for sterilisation are approved in nine cases and not approved in six cases. In one case where the young woman resided in community based accommodation and had regular contact with her family the application was approved. [11]
- In the Guardianship Tribunals two applications are withdrawn prior to hearing where the children resided in community based care returning to family during school holidays.
- Where parents had rare or no contact with the girl or young woman the sterilisation was not authorised by either the Family Court or Guardianship Tribunals.
The child's primary care arrangements (ie; who provides for the day to day needs of the young woman) may influence the decision to approve the sterilisation. For example, where parents have rare or no contact with the young woman the sterilisation is not approved in either the Family Court or Guardianship Tribunals. It is a defining feature in Family Court cases because all other sterilisation applications are approved. Judge Warnick said in his summing up in the only case which has not been approved by the Family Court said that:
".the parents wishes did not carry significant weight.their wishes did not impact on her at all. The child had no concept of their wishes and no feelings about whether their wishes were met or not. The parents were not involved in her daily care and there was no suggestion that their attitudes to or interaction with the child would change in any way dependent upon the outcome of their application. " [12]
(g) other factors
- In both the Family Court and the Guardianship Tribunals the majority of girls and young women reside on a full-time basis with at least one parent.
- About 40% live with both biological parents
- The mother or foster mother in the majority of cases is the young woman's primary carer.
- In Family Court cases about one-fifth of all families are second marriages and the young women is not a child of the current marriage compared to none in the Guardianship Tribunals.
- The Family Court and Guardianship Tribunals have an equal representation of one parent families with the Guardianship Tribunals having a slightly higher representation of foster parent families.
- Less than one-fifth of the young women have residential carers providing day to day care.
- About one-third of the young women have at least one parent with physical disability or chronic illness
- About one-fifth of the families care for more than one child with a disability in the household
The girls and young women subject to sterilisation applications are not a homogenous group and have varied competencies. Not all of them have severe intellectual disabilities.
Most of the girls live with their families who provide primary care and in these cases the expressed wishes of parents carry significant weight.
1. The findings in this chapter are based on an analysis of all applications for sterilisation to the Family Court or Guardianship Tribunals (NSW and SA) from Marion to the end of June 1999. The raw data used in this report is derived from PhD research on special medical procedures for children by SM Brady, University of Queensland, School of Social Work & Social Policy. It is the property of SM Brady and its accuracy her responsibility. Refer to footnote 12 in Chapter Two about data accuracy.
2. The Family Law Council in the context of family law disputes in relation to child abuse allegations has commented that the new Federal Magistry will be preferred by litigants for a practical reason because of "the (in)ability or (un)willingness of parties to pay the more expensive legal cost applicable in the Family Court" p 20 see Family Law Council (2000) The best interests of the child? The interaction of Public and Private Law in Australia, Discussion Paper No.2 October, Canberra. It is generally recognised that legal costs are a significant issue in family court matters, and applications in guardianship jurisdictions do not incur legal costs for the applicants.
3. There was minimal reference to family financial matters in either court or tribunal files.
4. Reference to assistance provided by way of service packages from government and non-government sectors was noted in the tribunal files, indicating concern about support services for families.
5. Written reasons and member file notes illustrate this point. Transcripts from hearings in the Family Court also did not refer to services.
6. These are programs not part of the school curriculum but specifically designed for the individual child. They are usually behaviour management programs or menstrual management programs.
7. For example, physiotherapy services from private practitioners.
8. In the Guardianship Tribunals an application may be made on behalf of parents by a doctor.
9. Discussions with government and non-government organisations providing any form of congregate or group home care have confirmed policy does not support the surgical sterilisation of children or adults with intellectual disabilities unless for therapeutic reasons.
10. One included hysterectomy with bilateral oophorectomy and another endometrial ablation with hysterectomy as a last resort.
11. The young woman had a 'dual' disability with intellectual disability and a poorly managed psychiatric illness, and the procedure authorised was a tubal ligation.
12. In re: Sarah., L and GM v. MM; the Director-General, Department of Family Services and Aboriginal and Islander Affairs (1994) FLC 92-449