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Parental Responsibility for Children and Objectivity12th April 2017 Family Law
The basic principle of parental rights is based upon a concept which occurs frequently within Children Act proceedings, namely parental responsibility.
Parental responsibility is provided to the legal parents of a child and other individuals if there is an order of the court. The mother of the child will always have parental responsibility for the child by virtue of giving birth to the child however, the father will only acquire parental responsibility for the child without intervention of the Court if he is married to the mother at the time of the birth or subsequently or if he is named on the birth certificate as the father and the child's birth is registered after 1 December 2003.
Parental responsibility is the authority which gives parents the right to decide what is in the best interests of their child. But what happens when you are faced with a difficult decision when there is a potential conflict between what is in a child's best interests and the interests of a parent to want to help that child as much as possible and keep them in their lives? It is for this reason that the inherent jurisdiction can be invoked. This is a doctrine which provides a superior court with the jurisdiction to hear any matter which comes before it unless a statute or rule limits that authority or grants exclusive jurisdiction to another court. This can therefore provide the Court with overriding control to exercise objective judgement in exceptional circumstances in respect of a child's best interests where necessary.
This is exactly the situation that the parents found themselves in respect of their child Charles Gard who is fondly known by all as Charlie. Charlie suffers from a rare genetic condition and at present is unable to breath without a ventilator. Charlie's condition is such that there is no treatment available to Charlie in the UK that would assist.
Charlie's parents looked extensively for any treatment which may have been available to assist Charlie and improve his condition. When doing so, they found that in the USA they were offering what was referred to as the 'pioneering treatment' of nucleoside therapy. The parents were able to raise the funds through a public forum to fund this treatment for Charlie. The application before the Court was that made by Great Ormond Street Hospital for the Court to make an order in the following terms:
1. That it is lawful and in Charlie's best interests for artificial ventilation to be withdrawn;
2. That it is lawful and in Charlie's best interests for his treating clinicians to provide him with palliative care only; and
3. That it is lawful and in Charlie's best interest not to undergo nucleoside therapy.
To enable the Court to determine this matter, it was also necessary for the Court to determine that Charlie by reason of his minority, lacked capacity to make decisions regarding his medical treatment. Given Charlie's age, this was not in issue.
The Court heard evidence on this matter and Charlie's parents courageously accepted that Charlie's current quality of life was not worth sustaining. Although there were methods that could ensure Charlie could travel to the USA to undergo the treatment, given Charlie's unique disorder, the American specialist administering the treatment determined that it was 'very unlikely that he would improve with therapy'. Experts were unanimously agreed that nucleoside therapy cannot reverse structural brain damage. In addition, nucleoside therapy is known to cause pain. The team treating Charlie at Great Ormond Street Hospital were of the view that despite Charlie's condition, he could probably experience pain.
In the circumstances, it was left to Mr Justice Francis of the High Court to make the unenviable decision of whether it was within Charlie's best interests to withdraw all treatment for him save for palliative care to permit Charlie to die with dignity. This was overwhelmingly led by the expert evidence that determined that Charlie's brain function was extremely unlikely to be improved by the treatment as this had never been tested. The analysis of Mr Justice Francis was that if this was correct, Charlie could not be in any better position than he is now which is a position that the parents had reluctantly conceded should not be sustained for Charlie. It was for this reason that Mr Justice Francis determined that it was in Charlie's best interests for the treatment to be withdrawn and only palliative care provided.
This is an extremely rare case with exceptional facts however, this exemplifies that despite parents having the authority to make decisions in the best interest of the child, there can be tension between the views of those with parental responsibility and the opinion of medical professionals and it is for this reason that the inherent jurisdiction of the High Court can be engaged where necessary to make decisions for a child.
This highlights that unfortunately it is not only in times of parental conflict that the Courts can be engaged to make a serious decision which would usually be made by parents or other adults with parental responsibility for a child but a reminder that the Courts can be asked to consider matters where it is impossible for parents or other parties to make a decision of such severe importance in respect of an individual's best interests which is not influenced by their own views and emotions.
Similarly, when dealing with an adult who appears to lack capacity to make decisions for themselves, the Court of Protection can be asked to determine important issues within a protected adult's life that are in their best interests to ensure that an objective view can be provided to a subjective situation. This is a largely a rare but necessary function of the Courts to ensure that an individual's best interests are furthered.
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