Settling A Disagreement Between Parents Over A Child’s Medical Treatment

The legal issue

Consenting to medical treatment for a child is an exercise of parental responsibility. Children Act 1989 s.2(7) provides that where more than one person has parental responsibility for a child, each of them may act alone and without the other in meeting that responsibility — but the same subsection adds that nothing in that Part affects the operation of any enactment requiring the consent of more than one person in a matter affecting the child.

In practice a disagreement about treatment resolves itself into a stalemate rather than into one parent's decision prevailing. Where a clinician knows that one person with parental responsibility consents and another objects, the ordinary and prudent clinical course is not to proceed until the position is clarified. The child's treatment then waits on the parents, and the parents are deadlocked. Children Act 1989 s.8 provides the mechanism to break it: a specific issue order is an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

A second question sits underneath the first, and it grows more important as the child gets older: whether the child can consent for themselves. Family Law Reform Act 1969 s.8(1) provides that the consent of a minor who has attained the age of sixteen to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to the person, is as effective as it would be if the minor were of full age. Section 8(2) extends that to any procedure undertaken for the purposes of diagnosis and to any ancillary procedure, including in particular the administration of an anaesthetic. Section 8(3) provides that nothing in the section makes ineffective any consent which would have been effective had the section not been enacted, which preserves the separate question of whether a younger child of sufficient understanding can consent.

We assisted a parent in a case involving a child whose parents both held parental responsibility. A disagreement had arisen about whether the child should proceed with a proposed course of medical treatment, with one parent supporting the treating team’s recommendation and the other raising concerns about whether it was necessary or appropriate. The clinical team could not proceed while the disagreement remained unresolved. There was a limited period in which the decision needed to be made, meaning that delay risked affecting the child’s care and the options available to the treating team.

The law this rests on

• Children Act 1989 s.1(1) — the child's welfare is the court's paramount consideration
• Children Act 1989 s.1(2) — delay is likely to prejudice the child's welfare
• Children Act 1989 s.1(3) — the welfare checklist, applied by s.1(4) to a contested section 8 application
• Children Act 1989 s.1(5) — no order unless making it would be better for the child than making no order
• Children Act 1989 s.2(7) — where more than one person has parental responsibility, each may act alone
• Children Act 1989 s.8 — specific issue orders and prohibited steps orders defined
• Children Act 1989 s.9(5), s.9(6), s.9(7) — restrictions on section 8 orders, including for a child aged sixteen or over
• Children Act 1989 s.10(4), s.10(9) — who may apply for a section 8 order, and the leave test
• Children Act 1989 s.11(1), s.11(3), s.11(7) — timetabling, interim orders, and directions and conditions
• Children Act 1989 s.7 — welfare reports
• Children Act 1989 s.100 — restrictions on the use of the High Court's inherent jurisdiction with respect to children
• Family Law Reform Act 1969 s.8 — consent by persons over 16 to surgical, medical and dental treatment
• Family Procedure Rules 2010 Part 12 — children proceedings except parental order proceedings and adoption, placement and related proceedings

How we approached it

IDENTIFYING WHOSE DECISION IT ACTUALLY IS

Before anything else, our family law specialists establish which of three different decisions is really in dispute, because they belong to different people and are resolved in different ways.

The first is the clinical decision about what treatment to offer. That is the treating team's, and the family court does not make it. The court decides whether a proposed treatment may lawfully proceed, not what should be proposed.

The second is the child's own decision, where the child can make one. Family Law Reform Act 1969 s.8(1) makes a sixteen- or seventeen-year-old's consent to surgical, medical or dental treatment as effective as an adult's, and s.8(2) carries that into diagnostic procedures and anaesthesia. Where the child is sixteen or over and consents, the shape of the problem changes entirely, and there is a further and important consequence in the Children Act 1989 itself: s.9(7) provides that no court shall make a s.8 order, other than one varying or discharging such an order, with respect to a child who has reached sixteen unless it is satisfied that the circumstances of the case are exceptional, and s.9(6) restricts the making of a s.8 order which will end after the child has reached sixteen to exceptional circumstances too. A specific issue order is not the ordinary route for a sixteen- or seventeen-year-old.

The third is the parents' decision, and it is only where that is the live one — the child is under sixteen, or is not in a position to decide — that a specific issue order under Children Act 1989 s.8 is the right application.

WHICH ORDER, AND THE LIMIT ON IT

Children Act 1989 s.8 defines a specific issue order as an order giving directions for the purpose of determining a specific question in connection with any aspect of parental responsibility, and a prohibited steps order as an order that no step which could be taken by a parent in meeting parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court. Which of the two is appropriate depends on whether the applicant needs treatment authorised or needs a step stopped.

Children Act 1989 s.9(5) limits both: no court may exercise its powers to make a specific issue order or a prohibited steps order with a view to achieving a result which could be achieved by making a child arrangements order, or in any way that is denied to the High Court in the exercise of its inherent jurisdiction with respect to children. That second limb matters in medical cases, because it ties the family court's s.8 powers to the boundaries of the inherent jurisdiction rather than allowing s.8 to reach further.

Where the dispute is not between two parents but between a family and a treating body, or where the decision is one of real gravity, the application is commonly made to the High Court under its inherent jurisdiction rather than under s.8. Children Act 1989 s.100 constrains that jurisdiction in defined ways, and s.100(3) requires a local authority to obtain the court's leave before applying for its exercise, with s.100(4) allowing leave only where the result could not be achieved through an order the authority is entitled to apply for and there is reasonable cause to believe the child is likely to suffer significant harm otherwise. Establishing early which forum the case belongs in avoids issuing in the wrong one.

WHO CAN APPLY

Children Act 1989 s.10(4) entitles a parent, guardian or special guardian, and a person named in a child arrangements order as a person with whom the child is to live, to apply for a s.8 order without permission. Anyone else needs the leave of the court, and s.10(9) requires the court on such an application to have regard in particular to the nature of the proposed application, the applicant's connection with the child, and any risk of the application disrupting the child's life to such an extent that the child would be harmed by it.

WHAT THE COURT WEIGHS, AND IN WHAT ORDER

First, Children Act 1989 s.1(1): in determining any question with respect to the upbringing of a child, the child's welfare is the court's paramount consideration. In a treatment dispute this is worth stating plainly, because parents in this position frequently frame the argument in terms of their own rights, their own beliefs or their own reading of the evidence. None of those is the test. The court is not adjudicating between two parents; it is deciding what serves this child.

Second, the welfare checklist in Children Act 1989 s.1(3), which s.1(4) applies where the making of a s.8 order is opposed by a party. In a medical treatment dispute the checklist items do specific work:

(a) the ascertainable wishes and feelings of the child concerned, considered in the light of the child's age and understanding. This is central where the child is old enough to have a view about their own body and their own treatment, and the court's obligation is to ascertain those wishes, not to assume them.

(b) the child's physical, emotional and educational needs. The clinical benefit and the clinical burden of the proposed treatment sit here, as does the effect of not treating.

(c) the likely effect on the child of any change in circumstances, which in a treatment case includes the effect of the treatment itself and of any recovery period.

(d) the child's age, sex, background and any characteristics of the child which the court considers relevant. A family's religious or cultural background is relevant under this paragraph — as a characteristic of the child and part of their background, weighed within the welfare assessment rather than standing outside it as a separate right to be balanced against welfare.

(e) any harm which the child has suffered or is at risk of suffering. This runs in both directions: the risk of the treatment and the risk of withholding it.

(f) how capable each of the child's parents is of meeting the child's needs, which in a treatment case includes who will manage aftercare, medication or follow-up.

(g) the range of powers available to the court, which includes the power to authorise part of what is sought, or to make directions rather than a bare authorisation.

Third, delay. Children Act 1989 s.1(2) sets out the general principle that any delay in determining a question about a child's upbringing is likely to prejudice the child's welfare, and s.11(1) requires the court to draw up a timetable with a view to determining the question without delay. Medical disputes are the clearest case there is of delay causing harm directly, because a treatment window can close while the parties are arguing. Children Act 1989 s.11(3) allows the court to make a s.8 order at any time during the proceedings even though it is not in a position to dispose of them finally, and that is the provision relied on where something has to be decided before a final hearing is possible.

Fourth, Children Act 1989 s.1(5): the court shall not make an order unless it considers that doing so would be better for the child than making no order at all. If the parents agree, or if the child turns out to be able to consent, an order may well be unnecessary.

PROCEDURE AND TIMESCALES

Children proceedings are governed by Part 12 of the Family Procedure Rules 2010. Where the court needs an independent view of the child's welfare and wishes, Children Act 1989 s.7 allows it to ask a Cafcass officer, or a local authority, to report on such matters relating to the welfare of the child as are required to be dealt with in the report.

The honest position on timing is that a medical treatment dispute is one of the few private children applications that can be brought on genuinely quickly, and equally one where an ordinary listing may be far too slow. Where the clinical timetable is short, the application should say so on its face, be supported by evidence from the treating team about what the timing pressure actually is, and ask for an abridged timetable. Where there is no urgency the case will follow the ordinary course and take months. Getting this right at the point of issue is the single most consequential decision in a case of this kind.

WHAT THE EVIDENCE HAS TO DO

A treatment dispute is decided on medical evidence and on evidence about this child, not on the strength of either parent's convictions. The material that assists the court is the treating team's account of what is proposed, why, what the alternatives are, what happens if nothing is done and what the timing constraint is; anything already recorded about the child's own understanding and wishes; and a clear, non-partisan explanation of the objecting parent's position and what would resolve it. Arguing the science from outside the evidence does not help, and neither does treating the other parent's belief as though it were the issue. The question the statute asks is narrow, and answering that question is what moves the case.

The outcome

The orders a court can make on an application of this kind, and what governs the choice between them:

A specific issue order under Children Act 1989 s.8 determining that a specified treatment may be carried out, or determining that it may not. This is the order that resolves the deadlock, and it operates on the question of parental responsibility rather than directing the clinicians what to offer.

A specific issue order framed more narrowly than the whole dispute — for example authorising a diagnostic step, or a first stage of treatment, while leaving a later decision to be revisited. Children Act 1989 s.1(3)(g) requires the court to have regard to the range of its own powers, and a narrower order is often the one that fits the evidence.

A prohibited steps order under Children Act 1989 s.8, providing that a specified step shall not be taken by any person without the consent of the court, subject to the restriction in s.9(5).

Directions and conditions attached under Children Act 1989 s.11(7): directions about how the order is to be carried into effect, conditions to be complied with by a named person, a specified duration, and incidental, supplemental or consequential provisions. In a treatment case this is where arrangements about aftercare, attendance at appointments, and the sharing of clinical information are recorded.

An interim order under Children Act 1989 s.11(3), where a decision cannot wait for the final hearing.

No order at all, under Children Act 1989 s.1(5). Where the parents reach agreement once the clinical position is properly explained, or where the child turns out to be able to give an effective consent under Family Law Reform Act 1969 s.8(1), no order is the right result.

Where the child has reached sixteen the position is different again: Children Act 1989 s.9(7) prevents the court making a section 8 order in respect of such a child, other than one varying or discharging an existing order, unless the circumstances are exceptional. A dispute about a sixteen- or seventeen-year-old is not ordinarily resolved by a section 8 order at all.

The choice between these is governed by Children Act 1989 s.1(1) — the paramountcy of the child's welfare — applied through the welfare checklist in s.1(3), and constrained by s.1(5) and by s.9(5).

The matter was resolved by the court making a specific issue order under section 8 of the Children Act 1989. The order determined the parental-responsibility question that had prevented the clinical pathway from progressing, allowing the child’s care to move forward in accordance with the court’s welfare decision.

Outcomes of this kind turn entirely on the evidence in the individual case. Nothing here is a prediction or a promise about any other case.

What to take from this

• Two parents disagreeing does not mean the consenting parent's decision simply stands. Children Act 1989 s.2(7) lets each holder of parental responsibility act alone, but in practice a known objection stops the treatment rather than settling it, and the deadlock has to be broken by the court.
• The order that breaks the deadlock is a specific issue order under Children Act 1989 s.8 — an order determining a specific question connected with any aspect of parental responsibility. Children Act 1989 s.9(5) limits it: it cannot be used to achieve what a child arrangements order would achieve, nor in any way denied to the High Court's inherent jurisdiction.
• A child of sixteen can consent for themselves. Family Law Reform Act 1969 s.8(1) makes the consent of a sixteen- or seventeen-year-old to surgical, medical or dental treatment as effective as an adult's, and s.8(2) extends that to diagnostic procedures and to anaesthesia. Children Act 1989 s.9(7) then bars a new section 8 order for a child of that age save in exceptional circumstances.
• A parent's beliefs are weighed inside the welfare assessment, not against it. Children Act 1989 s.1(1) makes the child's welfare paramount, and the family's background and the child's characteristics enter the balance through the checklist at s.1(3)(d) — as part of the welfare question rather than as a competing consideration.
• The child's own wishes must be found out, whatever their age. Children Act 1989 s.1(3)(a) requires the court to have regard to the child's ascertainable wishes and feelings in the light of their age and understanding, and Children Act 1989 s.7 allows the court to ask a Cafcass officer or a local authority to report on the child's welfare.
• Delay is not neutral in a medical case. Children Act 1989 s.1(2) treats delay as likely to prejudice a child's welfare and s.11(1) requires a timetable aimed at determining the question without delay; where the clinical window is short, s.11(3) allows the court to make an order before it can finally dispose of the case.
• The court decides whether treatment may lawfully proceed. It does not decide what treatment should be offered — that stays with the treating team, and the family court's role is bounded by the question of parental responsibility that Children Act 1989 s.8 describes.