Abortion permission granted to 12-year-old by court

A Queensland judge has ruled that a 12-year-old girl is competent enough to consent to an abortion, after she fell pregnant to her 13-year-old boyfriend.

Supreme Court of Queensland judge Catherine Muir. The girl ‘is competent to consent to undergo the termination of her pregnancy, and she may give valid and lawful consent for such treatment’. Picture: supplied

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Queensland’s Supreme Court has allowed a 12-year-old girl to have an abortion, after ruling she was competent to consent to the surgical termination of her nine-week pregnancy.

The girl – identified only as “E” in judge Catherine Muir’s written judgment – had fallen pregnant to her 13-year-old boyfriend, and both she and her mother asked the hospital to perform an ­abortion.

Unsure whether the girl had the capacity to consent to the procedure but accepting that a termination would be in E’s best interests, the hospital was forced to apply to the court for authorisation.

After hearing testimony from E, her doctor, her midwife, and an expert psychologist, Justice Muir ruled that E was “competent to consent to undergo the termination of her pregnancy, and she may give valid and lawful consent for such treatment”.

The court heard E and her boyfriend had engaged in consensual sex, and E had discovered she was pregnant when she missed a ­period and took a pregnancy test.

While the girl confided in her mother and maternal grandmother, her pregnancy was kept a secret from her father because it was feared he would become violent towards her if he found out.

The judgment, delivered on June 16 but published on Thursday, said E planned to have an Implanon contraceptive implant inserted at the same time as the surgical abortion.

“Historically, children have had no capacity at all to consent or refuse treatment,” Justice Muir’s judgement said.

“This was always within their parents’ remit. Now the law recognises there are certain developmental stages relevant to a young person’s ability to consent to medical care. The first is young children who are unable to consent. The second is young people under 16 who are Gillick competent, and able to consent.

“The third is young people who are between 16 and 18 who are presumed competent to consent as adults.”

The “Gillick” test of competency – which decides whether a child can consent to their own medical treatment – refers to a landmark mid-1980s case in England in which a mother, Victoria Gillick, refused to give consent for one of her five daughters under 16 to be prescribed contraception by a doctor.

In 1992, the Gillick test was adopted into Australian law in what is known as “Marion’s case” after the parents of a 14-year-old girl known as Marion, who had an intellectual disability, applied to the Family Court for her to be sterilised.

The High Court ruled that Marion’s parents could not authorise the sterilisation procedure without a court order.

In Queensland in 2018, abortion was removed from the Criminal Code and allowed the procedure on request up to 22 weeks’ gestation.