Marion's Case

Marion's Case

Court High Court of Australia

Full case name

Secretary, Department of Health and Community Services v JWB and SMB

Date decided

May 6, 1992

Citations (1992) 175 CLR 218

Case historyPrior actions

On appeal from the Full Court of the Family Court of Australia

Marion's Case, the common name for the case Secretary of the Department of

Health and Community Services v JWB and SMB, is one of the primary cases

under Australian law for deciding whether a child has the capacity to make

decisions for themselves, and when this is not possible, who may make

decisions for them regarding major medical procedures. It largely adopts the

views in Gillick v West Norfolk Area Health Authority, a decision of the

English House of Lords.

Background to the Case

"Marion", a pseudonym for the 14-year-old girl at the centre of this case,

suffered from intellectual disabilities, severe deafness, epilepsy and other

disorders. Her parents, a married couple from the Northern Territory sought

an order from the Family Court of Australia authorising them to have Marion

undergo a hysterectomy and an oophrectomy (removal of ovaries)- the

practical effect would be sterilisation and preventing Marion from being able

to have children, and also many of the hormonal effects of adulthood.

Under the Family Law Act the primary concern for matters involving children

is that the court must act in the child's best interests. The majority of the

Court made it clear that this was not a consideration in this case, but that it

was merely deciding a point of law and that the decision about "best

interests" would be left to the Family Court of Australia after the case.

Arguments

The main legal debate that arose was: who has the legal authority to

authorise the operation? Three options existed: the parents (as legal

guardians of their daughter), Marion, or only by order of a competent court,

such as the Family Court of Australia.

The Department, together with the Attorney-General for the Commonwealth

of Australia, argued that only this latter option was possible - that only a court

could authorise such a major operation.

The parents, however, "argued that the decision to sterilise a child is not

significantly different from other major decisions that parents and guardians

have to make for children and that the involvement of the Family Court is

optional and of a "supervisory nature" only. Their argument was that,

provided such a procedure is in the best interests of the child, parents as

guardians can give lawful consent to a sterilisation on behalf of a mentally

incompetent child."

In the case, the High Court ruled that whilst parents may consent to medical treatment for their children, this authority does not extend to treatment which is not in the child’s best interests. Second, the Court held that where medical treatment has sterilisation as its principal objective, parents do not have the authority to consent on behalf of their child.

Questions:

1. Outline the importance of Marion’s case.

2. Define the term pseudonym. Why are they used in legal matters concerning children and young people?

3. Identify which piece of legislation was used in the case. In relation to children, what does this legislation try to achieve?

4. In your own opinion, should there be a set age for allowing children to make decisions concerning their health? State some areas where children would want to make decisions about their health.

'Sheer nonsense' that children cannot consent, says HensonRAYMOND GILL

August 3, 2010 SMH

BILL HENSON, the celebrated artist whose photograph of a nude

child in 2008 was slammed as ''revolting'' by the then prime minister

Kevin Rudd, last night said it was ''sheer nonsense'' for critics to

argue that a child did not have the capacity to consent to modelling

nude.

''People do get confused with notions of consent and harm,'' Henson

told a standing-room-only audience of 700 at Melbourne's Federation

Square.,

''But as my barrister friends remind me, kids do consent to all kinds of

significant things all the time. Parents consent to babies' injections, a

10-year-old consents to dental appointments, a 15-year-old can

consent to a sex change in this state. Consent is something that

increases gradually as a child moves towards its majority.

''Every day children consent to activities that result in real harm,'' he

said, saying a 12-year-old child going out to play football could ''find

himself in a wheelchair for the rest of his life. There is harm done to

children by parents consenting to activities every day''.

Henson's speech, launching the 2010 Melbourne Art Fair, has been

eagerly awaited because he has only spoken rarely since he sparked

a national debate about art and pornography and the rights of

children in May 2008.

Police shut down a Henson exhibition in Sydney, and the artist and

his work came under intense and sometimes bitter scrutiny. His

works hanging in several public galleries were assessed for their

possible breach of laws relating to pornography.

Henson said last night that the experience did not harden him and in

fact it may have ''strengthened my convictions''.

''I continue to do exactly what I have always done,'' he said.

In response to a question from the audience, Henson said that he

may have made ''errors of judgment'' in his 35-year career of

photographing nude models, including adults.

''If one was to have had seriously harmed someone it might shake

you but it's my conviction that in my experience the universal

response has been one of support from my models.''

The Herald's David Marr revealed in his 2009 book The Henson Case

that Henson had been invited into a primary school playground by its

principal to scout for models. The revelation brought fresh criticism of

Henson, who last night said he was still speaking at schools.

He did concede, however, that some teachers were concerned not

about his presence at the school, but about the publicity it might

generate.

In a 45-minute speech titled The Light and the Dark and the Shades

of Grey, Henson also argued that politicians are failing the public and

are prey to vigilantism. ''The greatest amount of airtime goes to those

who scream loudest,'' he said.

Questions:

5. Outline the legal issues regarding the media response towards Bill Henson.

6. Explain what Henson is trying to argue when he states that “People do get confused with notions of consent and harm”

7. Henson states other consenting events in a child’s life. In your own opinion is consented child nudity the same as the other events state by Henson?

8. Should the age of posing nude be different for artistic work? If so what age should the law allow children and young people to be photographed?

Drink, internet fuelling youth crime

Greg Roberts From:The Australian July 08, 2008 12:00AM

A COMBINATION of alcohol abuse and the impact of websites

such as Facebook and YouTube has generated behavioural

changes that are at the heart of spiralling rates of youth crime.

Analyses of police crime statistics from four states, to be presented at

a conference in Brisbane tomorrow, show violent crime by young

people is on the rise, with marked increases in offences committed by

girls and by children of both sexes under 14. The proportion of violent

crime committed by youth is also on the rise.

"We are seeing consistent trends indicating young people are

becoming more violent," said Paul Mazerolle, director of Griffith

University's Centre for Ethics, Law, Justice and Governance, who

compiled the figures.

"There are clearly changes in the behaviour of young people

responsible for this crime."

The number of violent crimes committed by offenders aged between

10 and 19 in the four states -- NSW, Victoria, Queensland and South

Australia -- rose from 17,944 in 1996-97 to 23,382 in 2005-06. Violent

crimes were listed as homicide, assault, sexual offences, robbery and

extortion.

The proportion of violent young offenders who were female rose from

23 per cent to 26 per cent in the same period, and from 30 per cent to

37 per cent for those aged between 10 and 14.

The younger age group is increasingly crime-prone. Boys between 10

and 14 were responsible for 519 in 100,000 violent crimes in 1996-97,

rising to 547 per 100,000 in 2005-06.

The number of violent crimes committed by girls between 10 and 14

rose from 166 in 100,000 to 229 over that time. The rate of assaults by

girls in the younger age bracket went up by 60 per cent in Queensland,

45 per cent in NSW and 36 per cent in Victoria.

"Youth violence is still largely driven by young males, but young

females are trending upwards," Professor Mazerolle said.

"The long-term increases show sharp percentage increases for the

younger age group -- those between 10 and 14."

Websites had fundamentally changed the way young people related to

each other, he said, and this could be linked to the increase in youth

crime.

"It's generated competition and encouraged them to look at ways of

gaining status," Professor Mazerolle said.

"Young people want to demonstrate superiority and toughness. That's

why we've seen a proliferation of things like the videotaping of violent

confrontations."

Professor Mazerolle said alcohol abuse was behind much of the crime

and that it was worsening as a result of mass communications through

internet postings and mobile phones.

"A birthday party that might once have been attended by 20 teenagers

will now have 200 gatecrashers. Alcohol and young people are an

explosive mix."

Professor Mazerolle said education and the justice system needed to

adjust to the changing youth culture.

"Kids should learn at school that one punch can kill. A softly, softly approach, where we give young offenders a third and fourth chance, is

no longer appropriate. We need intervention at young ages to redirect kids at risk from a pathway of delinquency.

Questions:

9. Identify the reasons for an increase of youth crime as stated in this article.

10. Is the article justified by blaming alcohol and the Internet for a rise in youth crime? Are there any other factors that have increased these statistics?