Parental Responsibility and Medical Treatment for a child

4th July 2017 Family Law

The telegraph has reported a mother's fury after finding out her 3 month old son had been circumcised without her consent when opening his nappy. The child was circumcised whilst in the care of his paternal grandparents, who share different religious beliefs to the mother of the child. The police, who previously decided it was not a criminal matter, have reopened the inquiry and are now investigating whether to bring charges against the GP for GBH. This is due to the issue of whether the GP had the requisite consent to enable them to conduct the procedure. The grandparents have also been arrested for conspiracy to commit GBH.

Usually the grandparents of a child would not have the power to consent to such medical treatment, unless they had obtained parental responsibility which would require an order from the Court. The parents of the child can consent to medical treatment such as circumcision if they hold parental responsibility for a child (s3(1) CA 1989). A mother automatically obtains this by way of giving birth to the child; however a father only automatically obtains parental responsibility if he is married to the mother at the time of birth or if he is registered as the child's father on the birth certificate and the child was born after 1 December 2003. If a father doesn't automatically have PR, this can be acquired a number of ways including by way of marrying the mother after the birth of the child, an agreement between himself and the mother for either the birth to be re-registered or the mutual signing a parental responsibility agreement in the face of the Court or by the involvement of the court either explicitly granting PR or a person being named as a resident parent under a Child Arrangements Order.

There is a requirement in law to consult everybody with parental responsibility in respect of all important matters relating to the child such as religion, schooling and medical treatment. If those with PR cannot agree the medical treatment for the child, they can make an application for the court to make a decision by way of a Specific Issue Order. A similar matter to this was dealt with in the case of L and B [2016] in which the father was unsuccessful in his application to the court requesting for the courts permission to allow the children to undergo circumcision in the absence of the mother's consent and the children's inability to consent. Mrs Justice Roberts concluded that circumcision should be deferred until the children are old enough to understand the implications by saying it was a finely balanced decision but there must be clear benefits which outweigh the risks. She further stated it is an irreversible procedure and that there is no guarantee the boys will wish to continue to observe the Muslim faith with the same devotion as their father. In Re J the same approach was taken concluding that circumcision at the age of five was not medically necessary and was not in the child's best interests.

In cases whereby the child is in need of medical treatment but those with PR either do not agree and/or refuse this e.g. Jehovah's Witness refusing their child to undergo a blood transfusion, the hospital or medical practice can make an application to the court which, if successful, would allow the treatment to go ahead despite the refusal of those with PR. The recent case of NHS Foundation Trust v T dealt with this issue whereby the NHS sought the Court's consent to administer blood and blood products to a boy who suffered from low blood platelet count when his parents, who were Jehovah's witnesses, could not consent to such administration. Mr Justice Peter Jackson held it was overwhelmingly in the child's best interest to receive the administration of blood and blood products in order for his health to be supported.

In making its decision in any situation the courts will consider the factors set out in S1(3) with the child's welfare being the paramount consideration. It's important to note that unless all persons who hold PR for a child agree to the medical treatment, or unless a court order has been obtained to administer it, consent may not been appropriately obtained and any medical practitioner could leave themselves open to the consequences.

 

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Jo-Anna Jellings is an Associate Solicitor located in Manchester Londonin our Family department

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