Foundation Of Laws University Of Sydney Essay

1621 words - 7 pages

1. Provide a procedural history of State of Queensland v B [2008] QSC 231

(a) In the case State of Queensland v B [2008] QSC 231, the name of the jurisdiction is parens patriae which is delivered by the Supreme Court in Brisbane and the responsible judge is Wilson J.[footnoteRef:1] [1: State of Queensland v B [2008] QSC 231.]

(b) A brief statement of material facts of the case :

In the case, B is a 12 years old girl who has intellectual disability while she is also around 18 weeks pregnant. The termination of pregnancy using a drug named misoprostol will affect the girl’s physical safety. This drug would also induce labour. [footnoteRef:2] [2: ibid [2].]

Moreover, the girl’s mother is not able to look after her because of work three weeks before. Hence, the girl’s father and grandmother became the guardian of the girl after her mother left. [footnoteRef:3] [3: ibid [10].]

(c) The legal issues facing the court :

There are several legal issues that exist in the case. First, according to Section 224 of the Criminal Code,[footnoteRef:4] the first legal issue is that using a drug or any other way to procure an abortion is unlawful. It is unconstitutional to terminate a pregnancy by using drugs or any other means. However, if the girl B continue to carry her unborn child, this will certainly cause a negative effect to both her mental and physical health. However, if she applies abortion, it is against the law. [4: ibid [8].]

Moreover, another legal issue is that according to Section 286 of the Criminal Code, parents or guardians should take good care of a child 16 years old or below which includes to avoid danger to the child’s physical health.[footnoteRef:5] B’s father is responsible for looking after her by the time her mother left for work so that she should be protected and avoid from getting hurt. [5: ibid [22].]

Besides, another legal issue is that whether the court should give the consent on behalf of the girl whether than B’s parents.

(d) Ratio decidendi, including the reasoning used to get there including decisions from higher courts:

There are several ratio decidendi that get to the decisions of the case. For the first legal issue, if the continuation of the pregnancy of a young girl affect her mental health in long term, it is reasonable for her to undergo abortion using drugs under the court’s consent.[footnoteRef:6] [6: ibid [23].]

The ratio that applies to the second legal issue is that parents and guardians are not the only person who has the duty to take care of a child who is under 16. According to the case State of Queensland v Nolan,[footnoteRef:7] the judge Chesterman J stated that the definition should also be applied to the doctors and the hospital that took care of the child.[footnoteRef:8] [7: State of Queensland v Nolan [2002] 1 Qd R 454.] [8: State of Queensland v B [2008] QSC 231.]

When it comes to the ratio of the third legal issue, under some...

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