Gillick, Gender, and the Australian Family Court: Evolution and Limits of Judicial Application

This thesis examines the application of the Gillick competence test in the Australian Family Court. While the Gillick test continues to guide both medical professionals and courts in determining when a child is competent to consent to medical treatment (and, by extension, to determine whether a doctor can lawfully treat them), the extent to which a competence finding confers genuine legal autonomy remains ambiguous and unsettled. This thesis exposes the challenges of the Gillick test in Australia by exposing doctrinal inconsistencies and jurisdictional uncertainties in balancing children’s autonomy, parental authority, and judicial oversight of a child’s best interests. The Australian jurisdiction is of particular interest because since 2004. it has heard over a hundred cases of children seeking to proceed with gender-affirming care. While the Family Court, until recently, had never once denied a child the treatment sought, the Court has also struggled to establish a convincing position on when children can consent to their care and in what circumstances a child’s Gillick competence is insufficient for the child to determine whether, and to what extent, they can seek treatment.

By undertaking the first sustained doctrinal analysis of Gillick in the Australian context, this thesis draws on insights from UK scholarship to evaluate the legal meaning and value of competence findings in practice. It demonstrates that Gillick has generated a fragile model of children’s medical decision-making authority. It argues that unresolved tensions between the roles of parents, courts, and competent children have left the autonomy of Gillick-competent minors precarious, raising critical questions about the scope and limits of children’s decisional authority in law.