Kiteleys Solicitors

Kiteleys Solicitors. 7 St. Stephen's Court, 15-17 St. Stephen's Road, Bournemouth, Dorset. BH2 6LA. Telephone 01425 278866.
Kiteleys Solicitors is the trading style of Kiteleys Solicitors Limited registered in England and Wales, registered number 03113721. VAT Registration No: 658 8813 79.
This firm is authorised and regulated by the Solicitors Regulation Authority. A list of directors is available for inspection at our registered office.

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At Kiteleys we are a team of experienced solicitors, all very enthusiastic about our own specialist areas of the law.

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26th July 2017

Parental Responsibility – v- a Child’s Individual Human Rights

Earlier this week the courts ruled that Great Ormond Street Hospital can lawfully withdraw all treatment save for palliative care to permit Charlie Gard, who suffers from a rare genetic condition to die, with dignity.

The ruling has led to anger and a divided public opinion. Many believe that it should be the parents’ choice what happens to their child whilst others consider that a child’s individual human rights would have been compromised if that had happened.

 

RECAP OF THE CASE

Charlie Gard has an exceptionally rare genetic condition called encephalomyopathic mitochondrial DNA depletion syndrome (MDDS).

Although he appeared perfectly healthy when he was born, his health soon began to deteriorate until he was left with severe brain damage, unable to open his eyes, move his limbs or breath unaided.

Charlies parents wanted to take him to America to have an experimental treatment called nucleoside therapy. The doctors at Great Ormond Street Hospital (“GOSH”) did not think it was the right treatment for him and did not believe that it would improve Charlies quality of life. The US hospital which was offering the treatment conceded that it would not reverse the brain damage.

GOSH applied to the high court for judges to decide Charlies future. The High Court agreed with GOSH, and the Court of Appeal confirmed that ruling stating that “it would be in Charlies best interest to be allowed to die with dignity”.

In June both the Supreme Court and European Court of Human Rights agreed with the doctors at Great Ormond Street.

 

WHY DID THE COURTS GET INVOLVED?

The decision was passed to the courts because Charlies parents and his doctors at GOSH were unable to agree on the best course of action.

Although parents have parental responsibility, overriding control is vested in the court exercising its independent and objective judgment in the child’s best interests. The principles which guide judges to their decision are well laid out and have been applied since 2005. These principles are known as “intellectual milestones.”

“In our judgment, the intellectual milestones for the judge in a case such as the present are, therefore, simple, although the ultimate decision will frequently be extremely difficult. The judge must decide what is in the child’s best interests. In making that decision, the welfare of the child is paramount, and the judge must look at the question from the assumed point of view of the child. There is a strong presumption in favour of a course of action which will prolong life, but that presumption is not irrebuttable. The term “best interests” encompasses medical, emotional, and all other welfare issues.”

 

UK LAW ON PARENTAL RESPONSIBILITY

A person who has parental responsibility for a child can make decisions on where the child lives, their education, religious upbringing and discipline.  They can also consent to adoption and whether the child can move to another country. Parental responsibility includes the right to give consent for medical treatment but those rights are not absolute. Where doctors and parents disagree, the courts may exercise objective judgment in a child’s best interest.

Parental rights to raise children are accepted as including a duty to ensure their health, safety, and wellbeing.  Parents cannot make decisions that may permanently harm or otherwise impair their child’s healthy development.

The courts tread very carefully when it comes to overriding the wishes of parents and will only do so only in exceptional circumstances.  As with all legal matters relating to children, the rights of the child are the dominant consideration.

When it comes to medical treatment, except in an emergency situation, parental consent is required in order to perform medical procedures on children, including adolescents.  However, the court can and will overrule parents if their decision endangers their child’s welfare.   This has often been shown in cases involving Jehovah Witness’s refusing consent for a blood transfusion for their child.  UK courts have generally ruled that a blood transfusion must be given, despite parents refusing consent because of their religious beliefs.

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.

These types of cases are never easy and always turn on their specific facts.  In cases such as little Charlie Gard, there are no winners and everyone is left devastated. Decisions are made by following set principles that balance out the needs of society as a whole.

Kiteleys Family Team can offer advice on a wide range of family related problems. For a free assessment by telephone, call our specialist family law solicitor Colin Mitchell on 01202 875646.

Posted by Mark Kiteley.

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Kiteleys Solicitors. 280 Lymington Road, Highcliffe, Christchurch, Dorset. BH23 5ET. Telephone 01425 278866.
Kiteleys Solicitors is the trading style of Kiteleys Solicitors Limited registered in England and Wales, registered number 03113721. VAT Registration No: 658 8813 79.
This firm is authorised and regulated by the Solicitors Regulation Authority. A list of directors is available for inspection at our registered office.