Re Paul [2008] NSWSC 960

New South Wales Supreme Court

CITATION : Re Paul [2008] NSWSC 960 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 10 September 2008

JUDGMENT DATE : 10 September 2008

JURISDICTION : Equity Protective List

JUDGMENT OF : Hamilton J

DECISION : Consent by Court granted to treatment of infant by blood transfusion in lieu of consent of parents.

CATCHWORDS : FAMILY LAW AND CHILD WELFARE [108] - Child welfare other than under Family Law Act 1975 (Cth) - Wards of Court - Supreme Court - Inherent jurisdiction to protect infants - Orders for Court's consent to medical treatment of infants in lieu of parents' consent - Whether order for wardship necessary.

CATEGORY : Principal judgment

In re O'Hara [1900] 2 IR 232 J v C [1970] AC 668 CASES CITED : Marion's Case (1992) 175 CLR 218 Re Jessica [2001] NSWSC 1207 Re Jules NSWSC 20 September 2008 unreported Royal Alexandra Hospital For Children v J [2005] NSWSC 465

PARTIES : Director General of the Department of Community Services (P) Names suppressed (Ds)

FILE NUMBER(S) : SC 4748/08

COUNSEL : R L Harper (P) R I Van Witsen, Solicitor (Ds)

SOLICITORS : I V Knight, Crown Solicitor (P) Vincent Toole, Solicitor (Ds)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 10 SEPTEMBER 2008

4748/08 RE PAUL JUDGMENT 1 HIS HONOUR: This is an application in effect to substitute the consent of the Court for the consent of the parents of a child to the administration of medical treatment by way of blood transfusion. The child is a boy aged just over one who has been diagnosed with an unresectable abdominal neuroblastoma. The parents' refusal or reluctance to consent to treatment by blood transfusion arises from their faith as Jehovah's Witnesses. I should make it clear at once that it is plain on the evidence that they are caring parents. Part of the evidence of this is the fact that they have been willing, indeed anxious, to cooperate with the child's medical advisers concerning all aspects of his potential treatment apart from their reluctance in relation to transfusions. 2 The power of the Court in what is known as its parens patriae jurisdiction to make orders of the kind sought is plain: see per Einstein J in Royal Alexandra Hospital For Children v J [2005] NSWSC 465 at [19], [20] and cases there cited. 3 The jurisdiction must be exercised in the best interests of the child. Bearing in mind its intrusive nature it must be exercised cautiously. It was said by Fitzgibbon LJ in In re O'Hara [1900] 2 IR 232 at 240: "In exercising the jurisdiction to control or to ignore the parental right the Court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded."