Family law case sets new ground in young people's rights

Family law case sets new ground in young people's rights

Wednesday, 18 February 2015

A recent landmark decision in the Family Court has clarified children’s legal rights around serious medical procedures.

For the first time, the Family Court has decided that a child can make their own decision about medical treatment for gender alignment, even if their decision is not supported by their parents.

Our family lawyers asked the court to consider whether ‘Isaac' was competent to provide informed consent for his own treatment.

Isaac, born overseas and living, since his teens, with extended family in Australia, had always had a powerful sense that though he was assigned a female gender at birth, this did not match his own sense of his identity − feelings which crystallised once he reached puberty. His first contact with Victoria Legal Aid was when he was 16 and trying to find out his rights in relation to his school’s insistence that he wear a dress.

Our family lawyers then became involved once it became apparent that Isaac was at risk of family violence. His family, both here and overseas, strongly opposed his wish to live as a male and were threatening to forcibly remove him from the country.

His lawyer ensured that he was placed on an Airport Watch List so that this could not occur, and then helped Isaac, aged 16 at the time, to apply to the Family Court for consent to begin medical treatment.

The role of the courts with children and serious medical procedures

Director Family, Youth and Children’s Law Services Nicole Rich said the Family Court has a role in overseeing decisions that parents wish to make about special medical procedures for minors, even if they support their child’s wish to undergo treatment.

‘This case was unique because it was not the parents but the young person himself, Isaac, who brought the case, seeking recognition that he can make his own decisions about medical treatment for gender alignment,' Nicole said.

‘After considering reports from experts, the court made an order giving Isaac sole parental responsibility for making medical decisions for himself.’

Isaac, whose family law case has set new ground in family law (PHOTO: courtesy of Paul Jeffers, The Age)

A voice for the most vulnerable

Isaac's lawyer, who cannot be named due to the court order in this case, said it had been vital that Isaac had a voice about such an important issue.

‘Isaac is one of our most vulnerable clients in so many ways: a young person, a minority regarding his gender identification, has English as his second language, had several legal issues confronting him and, on top of all of this, was the subject of family violence.

‘He had very little in the way of supports but was fortunately a resilient and resourceful young person who was able to find and use our services.

‘He is an incredible young person and this was such a great outcome for him’, his lawyer said. ‘It has been extremely rewarding assisting someone who was so in need, and empowering him to take control of his situation in such a positive way.’

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