A Health Service v H (by her litigation guardian) [2026] QSC 80

SUPREME COURT OF QUEENSLAND CITATION: A Health Service v H (by her litigation guardian) [2026] QSC 80 PARTIES: A HEALTH SERVICE (applicant) v H (BY HER LITIGATION GUARDIAN) (respondent) FILE NO: BS 899 of 2026 DIVISION: Trial Division PROCEEDING: Originating application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 9 March 2026 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 9 March 2026 JUDGE: Hindman J ORDERS: THE COURT DECLARES THAT: 1. The respondent is not Gillick competent for the purpose of providing consent to the termination of her pregnancy. 2. The termination of the respondent's pregnancy by surgical procedure is in the respondent's best interests and is necessary having regard to her current and future physical and psychological health and her social circumstances, and is lawful. THE ORDERS OF THE COURT ARE THAT: 1. The time for service of this application be abridged pursuant to r. 27 of the Uniform Civil Procedure Rules 1999 (Qld). 2. The matter be heard in closed Court. 3. The respondent is not to be referred to by name, but by the reference "H". 4. The applicant is not to be referred to by name, but as "A Health Service". 5. The identity of the respondent be suppressed such that her name, the names of her family members and their occupations, the respondent's medical practitioners -- 1 of 9 -- 2 and other clinical staff, any other fact or matter that may identify the respondent, must not be published in any way, and only anonymised Reasons for Judgment and Orders shall be released by the Court to non- parties without further contrary order of the Court. 6. Subject to any contrary order of the Court, the Court file in this proceeding must not be made available to search or review by any person other than the respondent, their duly appointed lawyers, the applicant, or its duly appointed lawyers. 7. The originating application, affidavits, exhibits, written submissions and correspondence with the Court in this proceeding must be placed in a sealed envelope and may only be opened by order of the Court (with the sealed envelope to be marked accordingly). 8. The audio recording of these proceedings is not to be published or made available except to QTranscripts for the purpose of making a transcript for the Court, for the applicant, for the respondent, or for their legal representatives. 9. The respondent is permitted to undergo, and the applicant, its servants or agents are permitted to perform the termination of the respondent's pregnancy and any associated medical or surgical procedure. 10. The applicant, its servants or agents are permitted to perform the termination of the respondent's pregnancy by surgical procedure. 11. The termination provided for in orders 9 and 10 above be performed on a date to be fixed, but as soon as reasonably practicable and by no later than 19 March 2026. CATCHWORDS: HEALTH LAW – TREATMENT AND CARE OF PERSONS WITH IMPAIRED CAPACITY – where the respondent is a 13 year old child – where the respondent is 9 weeks pregnant – where the applicant is the treating health service – where the applicant seeks orders permitting its servants and agents to terminate the respondent’s pregnancy – where the respondent wishes to terminate the pregnancy by way of a medical, not surgical, termination – whether the respondent is Gillick competent and able to consent to a termination of the pregnancy – whether a termination of the pregnancy is in the respondent’s best interests – whether a surgical termination is in the respondent’s best interests Human Rights Act 2019 (Qld) Termination of Pregnancy Act 2018 (Qld), s. 5 -- 2 of 9 -- 3 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, applied Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218, applied COUNSEL: A R Hughes for the applicant M A Rawlings for the respondent (pro bono) SOLICITORS: Barry Nilsson Lawyers for the applicant Caxton Legal Centre for the respondent (pro bono) Introduction [1] This is an application that is brought in the court’s parental jurisdiction. It involves a 13 year old girl who is pregnant and who seeks to have that pregnancy brought to an end by medical intervention in circumstances where the medical practitioners who have been assisting her are not persuaded that she is Gillick competent. They have properly made this application to the court for declarations as to the Gillick competence of the child and, if the child is not Gillick competent, for directions as to what future steps should be taken in respect of the child’s pregnancy. [2] The application is one heard in a closed court because it involves a child. [3] Notice of the application has been given to the Attorney-General who has chosen not to intervene. Therefore, the parties present before the court comprise: (a) the applicant Health Service who makes the application; (b) the respondent child who appears by her litigation guardian, who is her mother. [4] The Court is grateful to Caxton Legal Service and counsel for providing their time pro bono to act on behalf of the litigation guardian. Factual background [5] The circumstances that lead to today’s application are set out in the affidavit of the mother. [6] The child is a 13 year old girl born in September 2012. She lives with her mother and male siblings. She has a biological father who has not been part of her life for any extended period of time, but they have started to rebuild their relationship. [7] The mother advises me that the child’s father is aware of the child’s pregnancy and is supportive of the child having a termination as he believes that is what is best for her. [8] The child is enrolled in school but, due to certain trauma that she has recently experienced, is not attending school at the present time. The child has experienced mental health symptomology for the last three years, including self-harm and feeling suicidal. The self-harm has occurred in circumstances where the family has been subject to domestic violence from the mother’s partner, and there is an allegation that -- 3 of 9 -- 4 that person (the mother’s partner) has also sexually assaulted the child. That allegation is the subject of a current police investigation. [9] If that not be a sad enough set of circumstances, the child in January 2026 was allegedly raped by a 22 year old man who she had met over social media. That man had purported to the child to be a person of a younger age. That allegation, insofar as the rape is concerned, is also before the criminal courts at the moment. [10] The mother reports that the child was not otherwise known to be sexually active but, by February 2026, she and the child realised that there was a risk that the child was, in fact, pregnant. The mother believes that the pregnancy is a product of the alleged rape. [11] Whilst the child initially expressed some interest in keeping the baby, or perhaps more accurately was concerned about ending the pregnancy, she is now firmly of the view that she does not want to have the baby. She has expressed that she is too young to have a child. She understands there may be medical complications if she carries on the pregnancy, and she is worried about that risk. She does not wish to have the child in the circumstances in which the pregnancy happened. [12] The child has expressed that she does not wish to have a surgical termination of the pregnancy because she is scared of the needle that she would have to have for the general anaesthetic required, and she is worried about people looking at her body. She has expressed that she would like to have a medical termination of the pregnancy, but, as I will come to, that seems to be based on an incorrect assumption about the simplicity about that type of termination where it is, in truth, not a simple experience at all. [13] The mother is of the view that the surgical termination is in the child’s best interests. The mother has spoken at length to the child to ascertain whether the child properly understands the options that are available to her, and her view of the child is that the child is not capable of making informed decisions in that respect. That is, perhaps, exasperated by the fact the child’s present mental health does seem to be suffering, that she appears to be depressed, feels like she has no self-worth, is crying, and is becoming very angry. The child is obviously in a very difficult place mentally and needs the counselling assistance that she has been offered. Legal Principles [14] The child, as at today’s date, is nine weeks and five days pregnant. Accordingly, a termination of the pregnancy is governed by section 5 of the Termination of Pregnancy Act 2018 (Qld). [15] As I indicated, the court’s intervention has been sought in this proceeding because the applicant has a concern as to whether the child is Gillick competent to consent to the termination of the pregnancy, and that means whether she is able to give informed consent to the contemplated medical procedure. The underlying question concerning informed consent requires the court to consider whether the child has reached a sufficient level of understanding and intelligence to enable her to fully understand what is proposed. -- 4 of 9 -- 5 [16] The medical staff of the applicant who comprise a consultant developmental paediatrician, a nurse practitioner, and a senior medical officer, have all expressed their opinions that the child is not Gillick competent, not necessarily for all purposes, but certainly in relation to consent to a termination of the pregnancy. [17] If the child is not Gillick competent to consent to a termination of pregnancy, then there is a risk that the performance of a termination of the pregnancy absent the court making appropriate orders would be unlawful, either as an assault or a trespass on the child. [18] The termination of a pregnancy is not the type of procedure in respect of which parents are able to provide the required consent on behalf of a child. There are lesser procedures where parents can give consent for children to undergo or not undergo treatment, but it is generally accepted that a termination of pregnancy is not of that type. Therefore, if the child is not Gillick competent to consent to a termination of the pregnancy, the parental jurisdiction of the court is enlivened, and the termination of the child’s pregnancy can be authorised by the court if the court considers that is in the best interests of the child. [19] If the child is Gillick competent, then it is for her to decide whether or not she consents to a termination of the pregnancy and what type of termination she would undertake, which is otherwise permissible pursuant to section 5 of the Termination of Pregnancy Act 2018 (Qld). [20] I will therefore first consider whether the child is, in fact, Gillick competent. If she is not, then it will be appropriate for the court to exercise its parental jurisdiction. That jurisdiction is only properly exercised to protect children and others who are unable to look after their own interests. Gillick competence [21] The relevant principles are discussed in the case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 and Marion’s case, which is Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 236 to 238. In Australia, in Marion’s case, the High Court recognised that a minor is, according to the Gillick principle, capable of giving informed consent when they achieve a sufficient understanding and intelligence to enable them to fully understand what is proposed. That is a question of fact, and it depends on the rate of development for each individual. [22] In this case, I am satisfied that the child is not Gillick component. In detailing my reasons for that conclusion, I will be less detailed than I otherwise would be in providing particulars of the child, her family, and the circumstances relevant to the assessment of Gillick competence because the matter involves a child, so as to protect the identity and privacy of the child. But there are, in my view, clear reasons in this case to conclude that the child is not Gillick competent. In that respect, I note that each of the clinicians involved in the child’s care has also concluded that the child does not possess the level of understanding or maturity needed in order to provide full informed consent in respect of the termination of her pregnancy. -- 5 of 9 -- 6 [23] In that respect, the child has demonstrated only a limited understanding of the pregnancy and pregnancy-related health. She has been able to describe some of the physical symptoms she is experiencing but has very limited understanding of the pregnancy itself. She has remarked, in quite an immature way, that she hates blood tests and does not seem to have any understanding about the type of interventions that might be required during a pregnancy and how it might affect her body. In fact, in discussions with medical staff, she has demonstrated a very limited understanding of female anatomy and reproductive processes. It might be that some of her absences from school have meant that she has not received the ordinary sex education that is provided at school, but it is concerning that when insertion-type contraceptives were discussed with her, she thought they would go through her bellybutton. That seems to give a clear indication of the immaturity of the child in respect of sexual functioning. [24] The child has demonstrated that she did not know of her own medical or surgical history. She was vague on her gynaecological history. She also seems to have a limited understanding of the proposed procedure and its risks. She perceives that a medical termination would simply involve taking tablets and that the process would be completed quickly. She seems to think that that would be a quick and easy process but does not appear to have taken on the information that has been provided to her about what the true impacts of a medical termination of pregnancy involve. Whilst she has been advised that it would include heavy bleeding and significant pain, she has compared that to her periods, and that is unlikely to be an adequate comparison. A medical termination requires multiple days of admission to hospital. [25] Further, because she is at the upper end of the recommended gestational period for a medical termination, the cramping and the volume of conception material that is passed is likely to be very significant, and would be very confronting for any person, let alone a child. It does seem to be the position that the child does not properly understand the likely extent of the bleeding and the pain, and the emotional confrontation that would come with a medical termination. Further, the child does not appear to have adequately been able to understand the quite significant risk of failure in medical terminations of between 10 to 15 percent, which, where there is a failure, will result in a surgical procedure having to be caried out in any event. [26] Further, in the circumstances of this case, where the pregnancy is alleged to have arisen as a result of a rape, there is also a requirement that the police have made that the conception material be collected for analysis, and that, of itself, would be a very confronting experience for anybody, let alone a child. [27] The child’s concerns about the surgical intervention option seem to be the fact that it does involve a surgery and a general anaesthetic, which involves a state of unconsciousness and needles. Whilst surgical termination has been explained to the child, the child has not been receptive to receiving that information for proper consideration. Further to that, the child has not demonstrated any capacity to weigh the competing considerations associated with the available options. The evidence from the doctors indicates that, for example, when the possibility of a failed medical termination was discussed, the child has simply disengaged from discussions, has not asked questions, and did not appear willing to engage with the realities of the options. -- 6 of 9 -- 7 [28] The medical staff have made very conscientious efforts to explain or attempt to explain to the child her options, but have concluded, as I do, based on the description of her responses to that engagement, that the child has demonstrated a limited ability to weigh the competing considerations or reflect on the implications of the available options. I also accept the medical practitioners’ evidence that, insofar as the alternative to a termination of pregnancy is concerned (that is, no termination), the child has not demonstrated a real ability to appreciate what are the long-term consequences of that option. She has been unable to show that she has real understanding into the practical and long-term responsibilities of parenting. She has been unable to meaningfully describe what caring for a baby would involve. [29] The medical practitioners have assessed her overall maturity and adaptive functioning and have considered those both to be below what would be expected for a child of her age. In that respect she is presently disengaged from school, she has minimum household responsibilities, and she is entirely financially and, it appears, emotionally dependent upon her mother. She does not have clear plans. She does not appear to have a capacity to engage in future-orientated thinking. She appears naïve and lacking in social awareness. [30] For all of those reasons, I find that I am readily able, in this particular case, to conclude that this child, aged 13 years, is not Gillick competent to consent to a termination of her pregnancy. Gillick competence assessment is often the hardest for children aged between about 12 and 14 where some children might be Gillick competent for certain procedures and others will not be, but this is a case where, overwhelmingly, the evidence points to the conclusion and I find that the child is not Gillick competent to consent to the termination of her pregnancy. The Court’s parental jurisdiction [31] Having concluded that the child is not Gillick competent to consent to the termination of her pregnancy, it turns then to what is in the best interests of the child. [32] There are real risks to the child in having the pregnancy continue, and there are a number of matters that need to be taken into account in considering how the court’s jurisdiction ought be exercised. [33] In terms of the medical evidence, what it shows is that a pregnancy at age 13 carries a heightened risk of pregnancy complications, including preeclampsia, gestational diabetes and a higher incident of pre-term delivery. There are also risks to bone and teeth health to the child which might have lifelong consequences. There is also a possibility that the child still has a paediatric pelvic shape, which might make delivery more difficult, and increase the risks of a caesarean section. There are also neonatal risks associated with pregnancies at this stage, although it ought be noted that in exercising my jurisdiction my concern is for the pregnant child, not for any unborn baby. [34] As I said, the medical evidence unanimously supports that a termination of the child’s pregnancy is in the child’s best interests. [35] In terms, then, of the child’s emotional maturity and the psychological impacts on her, I have explained that the evidence supports and I find that the emotional maturity -- 7 of 9 -- 8 of the child is low. There are psychological impacts on a child of that age, and who is suffering from the mental health symptomology I have described, of being required to carry a pregnancy to term. It is acute in this circumstance where the pregnancy is a consequence of an alleged rape, and a continuation of the pregnancy may operate as a continuing reminder of the trauma associated with that rape. [36] The child is clearly mentally vulnerable. She has already expressed concerns that any baby that resulted from the pregnancy would grow up asking questions about where it came from and how it was made, and that points strongly to the pregnancy having a negative psychological impact on the child. She has also expressed that she does not feel like her mental state is stable enough to care for a baby. The child is open about her exposure to domestic violence, sexual assault, bullying and the self-harm that she has engaged in. It is not realistic on the medical practitioners’ view, and I agree, to have the child deal with the emotional burden that comes with the stress of the pregnancy or parenting. [37] She is also a child who needs to go to school and do all the things that children need to do to become functioning adults. She is already delayed in that respect, and a continuation of the pregnancy is only likely to exasperate those problems. [38] In terms of her family support, I have already indicated that the child’s mother and father do both support the termination of the pregnancy. [39] Finally, a consideration that I am giving very significant weight to is the wishes of the child herself, who has expressed firmly that she does not wish to continue with the pregnancy. I am concerned that she would prefer a medical termination rather than a surgical termination, but in considering the medical evidence about that, it strongly points to the surgical termination being in the respondent’s best interests, rather than a medical termination, and I make that finding. Human rights issues [40] I have had regard to submissions that have been made about the impact of the Human Rights Act 2019 (Qld) on the exercise of the jurisdiction which is enlivened, but it does not seem to me that ultimately there is anything in the consideration of what is in the best interests of the child that would conflict with any human rights-related issues. As I have done in previous like cases, I am not going to formally determine exactly how the Human Rights Act 2019 (Qld) might apply, because I consider that the decision I am making is consistent with human rights. Contraception issue [41] Insofar as the material before the court did give rise to an issue about contraception options for the child going forward, the relief sought does not seek, even though it is the advice of some of the medical practitioners, that any form of contraceptive be imposed on the child. It does seem to me that that is an appropriate position for the applicant to take. [42] Whilst I have expressed my views about the child’s Gillick competence in respect of the choice to be made for the pregnancy and the continuation or termination of it, that is a very different position to that that exists in respect of a 13 year old seeking or -- 8 of 9 -- 9 having some contraception, and that should be left for her and her medical practitioners to discuss amongst themselves. Orders [43] I am going to make declarations and orders in terms of the order, save that I have deleted, as I discussed with counsel, paragraph 12. I am going to make orders supressing the identity of the child and others known to her in a way that will ensure her confidentiality is maintained. [44] Whilst it is, of course, the usual rule that all court proceedings should, where possible, be conducted in public, here there is a paramount duty to the interests of the child, and that makes those orders appropriate. The interests of justice in public justice will be satisfied by the decision being available in an anonymised form. I make orders in terms of the amended draft, initialled by me and placed with the papers. -- 9 of 9 --