In Western Australia (WA), a child's parent or legal guardian does not have legal authority to consent to the termination of the child's pregnancy regardless of the child's age. Any child who wishes to consider terminating a pregnancy is responsible for making that decision herself. This includes a child in the CEO's care.
A child in the CEO's care must be afforded the same legal right to a safe and confidential termination as applies to any other child.
If a child does not have the capacity to consent, an application may need to be made to the Supreme Court (acting in its parens patriae jurisdiction) and Legal and Business Services must be consulted.
A child must not be pressured into making a decision either way about the future of her pregnancy. Your role as child protection worker is to ensure she is well supported throughout and following appropriate decision-making processes about whether to have a termination.
Note: CEO refers to the Chief Executive Officer of the Department of Communities (the Department).
If a child in the CEO's care is pregnant and a termination of the pregnancy is being contemplated, only the child herself must consent to the termination.
Legal and Business Services must be contacted in certain circumstances where termination of the pregnancy of a child in the CEO's care is under consideration. Submit your request for legal services through the SharePoint Request Form page. Complete the request form, attach required document using the 'Add Attachment' link, then select 'Duty Lawyer' button. Then use the drop down menu and select 'Yes' to 'Submit to Legal & Business Services' at the end of the form and save it to lodge the request.
If a child in the CEO's care advises you that she is pregnant and considering a termination of the pregnancy:
Address her immediate safety. This could include "checking-in" with the child if she has existing mental health issues and presents as distressed. You
must ensure that she is offered a safe and supportive environment to return to if she raises any safety concerns.
Provide her with support and acknowledge that an unplanned pregnancy can be a very stressful situation. Reassure her that it is normal to feel scared and unsure about how to proceed, but that she will be supported. The support provided will depend on the specific situation and the individual child's needs and wants.
Ask the child if she has already talked to someone in her care team about the pregnancy. If she hasn't, but would like to, encourage her to identify someone she feels comfortable talking to and take steps to help facilitate this communication, so that she can receive additional support.
Determine if the child understands what her options are and where she can seek support. If she is unsure of her rights and options, refer her to an appropriate medical service where she can receive appropriate and up-to-date information and a medical assessment in a timely manner. Refer to Chapter 3.1 Foster care application and assessment and Adoption application, assessment and approval for further information on options.
In WA a termination of pregnancy is accessible and legal under 20 weeks gestation, with later terminations possible in specified circumstances only in accordance with s.334(7) of the
Health (Miscellaneous Provisions) Act 1911 (Health Act). It is important that the child is given space and time to consider her options, but it is also important that her options are not compromised due to a slow response.
If you become aware of the pregnancy via another person:
Determine if there are grounds for assessment if the information has come to you via a formal referral, such as a mandatory report.
Ask if the person had permission from the child to tell you about the pregnancy. If the person did not have permission, consider how best to engage with the child in a supportive way, acknowledging that her trust has been breached. Reassure her that she will not be judged.
Provide support to the person telling you, particularly if they are a carer or someone else significant to the child. Discuss with that person the importance of providing the child with support and allowing her to freely express her own wishes and views.
Under s.334 of the Health Act, it is the child herself who must give informed consent to the termination of a pregnancy. Informed consent to a termination is consent that is freely given by a woman (which includes a child who is considered Gillick competent) once a medical practitioner has:
Refer to the Gillick Principle (in related resources) for further information.
If the child is under 16 years, for the child's consent to be regarded as informed consent, a custodial parent or legal guardian must be given:
the information that a termination of the child's pregnancy is being considered, and
the opportunity of participating in a counselling process and in the consultations that must occur between the child and a medical practitioner as to whether the termination is to be performed (under s.334(8) of the Health Act).
However, a child under 16 years may apply to the Children's Court for an order that a custodial parent or legal guardian should not be given the information and opportunity referred to above. A child in the CEO's care may exercise this right if she does not wish you or another Department worker to be involved in the steps above. Legal and Business Services must be consulted if a child wishes to exercise this right.
The Supreme Court
There may be cases where a child is not considered to be Gillick competent to provide informed consent to the termination of her pregnancy (this may be determined by a medical practitioner). If so, an application may be made to the Supreme Court (under its parens patriae jurisdiction) to consider and decide on whether a termination of the child's pregnancy is in the best interests of the child.
Where a child is considered Gillick competent to provide informed consent for a termination of pregnancy, she will be similarly able to consent to anaesthetic if a surgical termination is required.
In some cases, a medical facility may also seek the consent of a parent to administer an anaesthetic for the surgical termination of child's pregnancy. Refer to Chapter 3.2 Operative procedures and anaesthetic consent for further information.
In a confidential health matter such as this, it is imperative that the child's privacy and autonomy is preserved to the greatest degree possible. Significant decisions, such as who should be consulted within the child's care team, should be made in collaboration with the child. Related decisions that should also be made in collaboration with the child include:
who will support her on the day of the procedure
who will pay for the termination (abortion), and
whether she wants to engage in counselling outside of what is medically required.
You must consult Legal and Business Services in the following circumstances:
You believe the child may not be Gillick competent.
There is a serious concern about the child's physical or mental health if the pregnancy proceeds.
You believe the child is being pressured by others in relation to terminating or not terminating the pregnancy.
The child is under 16 years and does not want you or anyone else in the Department (acting as the child's "parent") to be involved in the counselling or medical consultations that are required under the Health Act
Consult a TL in all circumstances to ensure that the child is provided with optimal support. The primary consideration before, during, and after a termination of pregnancy should be supporting the child. Adults in the child's care team may be distressed or upset and they may need to be reminded that the focus should remain on the child's needs.
The child should be supported by an appropriate adult and linked-in with appropriate sexual health services for information and services relating to her future sexual health. A harm minimisation approach is appropriate and, if the child is likely to continue to be sexually active, she should be supported with information and access to contraception.
The following organisations can provide these services:
If you or any other adult in the child's care team feel impacted by personal views and unable to support the child, seek supervision with your team leader (TL) immediately.
Explore the option of another child protection worker supporting the child so as not to slow down the decision-making process.
An assessment into sexual abuse is required if you or others believe there is a likelihood that the child's pregnancy involved sexual abuse. Aspects relevant to assessing sexual abuse include:
whether any bribery, coercion, threats, exploitation or violence was involved, and/or
whether a power discrepancy exists between the child and the other person, for example, a significant age or cognitive disparity or the other person was in a position of authority towards the child.
If you are unsure if a Child Safety Investigation is required, see Chapter 2.2 Sexual abuse and Conducting a Child Safety Investigation for further information.