Who decides?


26 July 2017

By Farhad Islam

Few of us could have failed to share the pain of Charlie Gard's parents who recently made the difficult decision to allow their son to die. But this decision came following a series of court hearings when they challenged the hospitals recommendation to client Charlie's life. Why did they have to face a legal battle?

Parents are generally allowed to choose what happens to their children.

They may make good or bad choices, but they have the right to make those decisions, whether that is about their child's diet and physical activity, their name, what school they go to, what religion they are raised in or what medical treatment they receive. This is parental responsibility.

If parents disagree between themselves about important decisions for their children, one of them has to apply to court. If a public body disagrees with parents' choices for their children, they must go to court in order to override the parents' parental responsibility.

When it comes to cases involving the medical treatment of children, views range from thinking that the doctor always knows best to the idea that parents should have complete freedom to make all decisions over their children's health. The law in the UK falls somewhere in-between.

In 2006, the parents of a disabled baby boy won their fight against the hospital's request to turn off the ventilator that kept him alive. The 19-month-old had spinal muscular atrophy, was almost totally paralysed and could not breathe unaided, but did not have any sign of brain damage. He died later, aged two.

In 2009, the parents of a baby who, like Charlie suffered from a form of mitochondrial disease, lost their right to keep him on life support. The judge heard he had suffered brain damage and was in discomfort and pain. He died the next day.

Parents Refusing Treatment

In the UK, while parents have the right to make decisions about their children's medical treatment, their wishes will be overruled if they refuse a reasonable life-saving treatment which has a very high chance of working.

The classic example of this is parents who are Jehovah's Witnesses and refuse blood transfusions due to their faith. There have been many cases where the courts have sided with the doctors against the wishes of the parents.

There is a difference, of course, between parents refusing recommended treatment and parents, as in Charlie's case, asking for treatment against advice.

It is far simpler to prove that a treatment that almost certainly will keep a child alive is in their best interests than it is to argue that keeping a child alive is not in their best interests.

Cases like Charlie's are relatively rare and there is no statutory test for how judges should treat them. This means it varies case by case as to whether a judge decides what is in a child's best interests or uses the more onerous test of whether they are likely to come to significant harm.

Cases where parents or other family members cannot agree on the best arrangements for their children are far more common.  We have an experienced team of family lawyers can advise and assist you in resolving disputes about children.

Source: BBC website

Gepp & Sons Solicitors are one of the region’s leading law firms, providing clear legal advice on all aspects of family law for generations.  Please contact our Family Department on 01245 228 106 to speak to one of our team in confidence.

This is not legal advice; it is intended to provide information of general interest about current legal issues.