论文代写-昆士兰州诉B案的诉讼史
论文代写-昆士兰州诉B案的诉讼史。昆士兰州诉B [2008] QSC 231案已在审判部门提出并作出判决。档案编号为BS9246/08。申请人为昆士兰州，答辩人为其诉讼监护人B。聆讯于2008年9月17日展开。此案于2008年9月26日在布里斯班最高法院开庭审理。主审法官是法官威尔逊J。一个12岁的女孩B已经怀孕18周了。她现在在一家州立医院，想要终止妊娠。她的父母也希望她这样做，但在这种情况下，经知情同意而终止的决定超出了他们的权力范围。从评估和评估，已确定，B是一个平均智力的孩子，可能不理解与终止妊娠有关的担忧。建议B具有9岁儿童的智力水平，其心理评估显示其智力水平可能低于正常范围。目前尚不清楚这名父亲的下落。鉴于这种情况，昆士兰州已就行使其帕累斯帕特里亚管辖权，授权B.终止妊娠一事，向法院提出诉讼。
The legal issues facing the court here are how the parens patriae would be applicable for the situation as it was applicable in the case of State of Queensland v Nolan. Should the court now act as the supreme parent of the child and if in doing so would it be showing the reasonable care expected from it? A major issue here is to understand how the parens patriae jurisdiction will not apply to her child even if it applies to her. There are concerns of criminal liabilities to be understood, especially since informed consent is needed for aborting the fetus and in this case, neither the 12-year-old child nor the parents of the child would be able to give informed consent.
Ratio(nes) decidendi, the reasoning used and precedents
The reasoning with which the judge rules was based on the understanding that termination of the pregnancy of B was necessary in order to avoid danger to the mental health of B. B was a minor and could not decide for herself, and her parents would not be able to give informed consent in this condition so it necessarily falls on competent medical opinion that B has sought for her condition. The state hospital in understanding her situation has raised the application for parens patriae in order to help her and it is thus logical to give them the power to perform the termination of B’s pregnancy with the therapeutic drugs.
Where children are not able to look after their interests because of their age, then the court will be able to intervene on behalf of the children. The best interest of the child is what is important and for providing for the best interests of the child, the court is given wide powers here. This was established in the Marion’s Case by Judge Brennan. It was also described in R v Gyngall. Thus given that the Court has to act as the supreme parent that is logically conclusive for the court to consider why it was necessary for the termination of pregnancy to happen and how the mental state of the child would get affected if it not.
Furthermore, it would be a criminal liability if the state hospital was to administer the drugs for terminating pregnancy without the authorization or excuse of the court in the given situation. Therefore, considering these legal precedents, laws and reasoning, the Judge made his judgement.
When discussing the criminal code section 224, the judge states that there are many complex moral, ethical or even religious issues that arise when considering the issues of pregnancy. Now the consideration of moral, ethical and religious issues has not gone into the formulation of the judgment, rather sound medical judgement and law have been applied. However, these are beyond the province of the Court to determine
The Judge held that it was indeed reasonable to terminate B’s pregnancy given the case situation because it could otherwise result in mental harm to B. B was permitted to undergo such a treatment and the applicant servants or agents are permitted to perform the termination.
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