Re Carla: An error in judgment

Abstract

As Justice Brennan succinctly explained in Re Marion every person has a unique character and dignity that warrants respect and protection under the law. This extends to every member of society, whatever their race, gender, sexual orientation, sex characteristics or religion. If dignity is to be respected then the affected person should be at the centre of any enquiry, their preferences heard and their interests protected. Sadly however this ideal does not always translate into practise and a recent decision regarding surgical interventions on intersex children is an example of a situation in which the affected person’s rights and future interests were not afforded clear priority. The decision of Re: Carla (Medical procedure) [2016] FamCA 7 (Re: Carla) saw the Court handing full authority for decision-making to the parents and the medical fraternity. This withdrawal of the need for external scrutiny of invasive and potentially non-therapeutic medical treatment signalled a retreat by the judiciary from any meaningful engagement with the child’s future preferences. In this article, we argue that this decision, whilst well intentioned is, quite simply, an error in judgment.