It is not commonly known that parents do not have the authority to consent to all medical procedures for their children. There are certain medical procedures that require the consent of the Family Court under its welfare jurisdiction.
Children who experience gender dysphoria (gender identity disorder) and wish to access the two-stage medical treatment necessary to begin a gender transformation fall into this category. When deciding whether to exercise its discretion and consent to treatment, the Family Court is required to make the best interests of the child its paramount consideration.
A young person experiencing gender dysphoria identifies strongly with the opposite sex and often experiences discomfort with their biological sex and, consequently, the gender they physically exhibit.
Cases heard by the Family Court show that when a young person's body begins to develop into a gender they have rejected, they can often experience distress and can be subject to bullying, which in some cases will lead to depression and self-harm. The number of children seeking medical treatment for gender reassignment is on the rise, and the Family Court's intervention is viewed by many as an unnecessary and costly obstacle. Court proceedings can be lengthy, and for young people with gender dysphoria, access to medical treatment can often be needed as a matter of urgency.
Many families involved in the process have questioned whether judges are in a better position than the treating medical practitioners in relation to complex medical decisions. If the parents of a transgender child and their treating practitioner are in agreement, should the Court have jurisdiction to intervene?
Stage one of gender reassignment treatment is considered to be reversible, whereas stage two currently remains irreversible without surgical intervention. Decisions of the Family Court show us that it is concerned with the permanency of stage two treatment and validly so; the Court is unable to foresee what will be in a child's best interest in the future, and the nature of the treatment means that any wrong decision will have long lasting and irreversible consequences. By the same token, the consequences for withholding treatment can be just as significant.
Australia remains the only country in which court authorisation is necessary for gender reassignment treatment, though in some Australian states (such as South Australia), an individual of 16 years or over can legally consent to medical treatment. Members of the Family Court have acknowledged the arduous process that families face when making an application for treatment; in spite of this, the process continues to be costly and burdensome. Medical experts from the Royal Children's Hospital have warned of potentially disastrous consequences should treatment be delayed as a result of lengthy and costly court proceedings.
A recent Family Court decision has confirmed that the Court's consent is only necessary in instances where the provision of either stage of the two-stage treatment process is in dispute, or if the Court decides that the child is not competent and therefore does not have the appropriate capacity to consent to medical treatment. The Court's consent is not necessary for stage one treatment, provided that the treating practitioner and the child's parents are in agreement. However, it continues to remain a matter for the Court to determine if the child has the necessary capacity to provide valid and informed consent to the procedure.