The Law, the Incompetent Child S Rights and Decision Making

Whose Belief Is It Anyway?Children, Their Bodies And The Beliefs That Influence Parental Decision-Making

Introduction

The Western legal and medical preference of respect for individual autonomy in decision makingis regarded as paramount, however for children there is a complex dichotomy.[1] This exists between the rights of the child, protected by both domestic and international law, and conversely to what extent the law protects the rights of parents with regards to decisions they take for their children’s health and wellbeing.[2]For children the legal test of welfare is that of acting in their best interests[3] but the notion of a child’s best interests is not simply based on medical necessity. There are cultural, social, religious and legal considerations that influence determination of these.[4]The law under Gillick[5]enables the older competent child to consent to treatment. However, the child who is incompetent to make such decisions has their welfare protected under the Children Act 1989, which ensures that parents have a responsibility to act in their child’s best interests.[6]Of controversy is when these‘rights, duties, powers, responsibilities and authority’[7] are influenced by beliefs that conflict with medical opinion, required treatment or necessity.

I will argue that the law’s primary responsibility to the welfare of children, when faced with the issue of parental beliefs influencingessential and non-essential medical treatment decisions, is to protect the child from physical harm. Fundamental to my argumentis disagreement with the idea that failing to take parental beliefs into account is contrary to a child’s best interests, when physical harm will occur. This will be demonstrated through legal analysis of two aspects of children’s health that may be influenced by parental beliefs. These are, the refusal of treatment or interventionusing the examples of blood transfusion and immunisation, and the provision of unnecessary medical interventionin the form of infant non-therapeutic male circumcision.I argue that the actual or potential physical harm resulting from these issues is contrary to the rights afforded to children. Furthermore, that the law should be consistent in its approach to considering protection from physical harm as being in the best interests of children. Specifically, I will argue that immunisation should be legally required as a parental responsibility and that infant non-therapeutic male circumcision should be considered unlawful.

The Law, the Incompetent Child’s Rights and Decision Making

The requirement for involvement of the courts is predominantly an issue where there is a disagreement between parents regarding their child’s healthcare or where there is a disagreement between the child’s parents and their medical team.[8] Within English law such disagreements require the child’s best interests to be considered in light of the United Nations Convention on the Rights of the Child (UNCRC)[9]and under the Children Act 1989. The UNCRC provides that the best interests of the child are paramount when acting for them.[10] Conversely there is acknowledgement of the protection of parental beliefs under Article 2, in that children should be protected from discrimination that may occur because of these[11]. However,Article 24 provides that each State should take appropriate measures to abolish practices prejudicial to the health of children.[12] Kilkelly argues that the UNCRCplaces a child’s health ahead of parental beliefs in establishing a child’s best interests.[13]Where the Convention rights are made less definitive is under Article 4[14], in whichthe UNCRC transfers responsibility to each State for implementation. It is therefore necessary to turn to domestic legislation and jurisprudence.

The concept of children having specific rights in domestic law has only been recognised in recent years, particularly since the ratification of the UNCRC and the Human Rights Act 1998 incorporating the European Convention on Human Rights(ECHR).[15]Prior to the Act in Re T[16], where a mother’s refusal to consent for major surgery for her son was not overridden, Waite LJ held that rights were a modern preoccupation but that it was not for the court to confer children’s rights at that time.[17] Herring highlights that Re Tdemonstrates the court’s traditional tendency toheavily weight parental opinion in establishing a child’s best interests, despite the broad considerations set out in the Children Act 1989.[18]

Section 1 (3) of the Children Act 1989 states that the best interests of a child must be considered in light of physical, emotional and educational needs. Furthermore, the child’s age, gender and background and the capability of the parents to meet the child’s needs are also considered.[19]Seymour arguesthough that when courts consider a child’s needs, they must recognise that parental beliefs influence the biological or parental relationship and that this contributes to a child’s individual wellbeing.[20] The issue is whether these beliefs should be considered as being of greater significance than any physical harm that they may cause to the child, the argument throughout this essay is that they should not.

In contrast to rights that are afforded to children, in English law decisions concerning the welfare of children are afforded by the acquisition of parental responsibilities as opposed to rights.[21]Under English law, only those with parental or other legal responsibility[22] can consent for the incompetent child. Under common law the courts hold two powers to remove parental decision making responsibility using the welfare principle of Parens Patriae, whereby the court has jurisdiction to act in order to protect those unable to do so, including children.[23]These powers are where the court either orders wardship, meaning that they are placed under the care of the court for all decisions, or inherent jurisdiction, where the court is empowered to make a single decision regarding a child’s welfare or treatment.[24] In undertaking either of these measures,, Fortin highlights the court’s obligation to the welfare of children and as a consequence parental autonomy can be restricted.[25]

Where religious and cultural beliefs affect decision making, the courts must recognise the importance that society and the law places on parental privilege.[26] However, as Hirasawa summarises, that there are three instances where court intervention exists to protect the child from harm.[27] These are where the intervention is illegal, where parents disagree with each other or the medical team and where the decision could cause significant harm to the child.

When Parental Beliefs Are Unlawful

The criminal law provides that medical treatment is an exception to the general principle that acts causing physical harm to another person are unlawful, followingR v Brown[28].Lord Templemanalso clarified the exceptions of piercings, tattoos and non-therapeutic male circumcision as being lawful acts.[29] Although as Wheeler highlights, the courts have not yet been faced with the issue of genital piercing in children for cultural or religious purposes and argues that this would likely be considered unlawful.[30] The courts have held that certain ritualistic practices are unlawful, such as making cuts on a child’s face in accordance with a cultural custom in R v Adesanya[31] and female circumcision.

Despite cultural and religious beliefs of parents within certain communities, the practice of female circumcision has been legislated as unlawful under the Female Genital Mutilation Act 2003[32]. Furthermore, it is an offence to travel with a child oversees for the purposes of genital mutilation.[33] Despite the significant physical and psychological harm that is caused by such acts, there is as Domingo suggests an argument justifying them based on the right to religious freedom in relation to physical characteristics of belonging to a culture.[34] Specifically, using the example of where it is not deemed unlawful to mutilate the genitals of boys through non-therapeutic circumcision, despite the physical harm involved.[35] In this brief overview of illegal practices it is already apparent that the law is inconsistent in protecting all children from physical harm resulting from parental beliefs.

Where Parental Beliefs Cause Disagreement

The Children Act 1989 provides that a person with legal parental responsibility may act alone in making a decision for a child.[36]In the vast majority of medical decisions made by parents this is not an issue but the General Medical Council (GMC) advise that where possible all those with parental responsibility be involved in medical decisions.[37] However, medical professionals must accept that there are practical and social factors that may not make this possible.[38]This essay will not discuss the issues of who is provided with parental responsibility, except to note that the law has evolved to recognise the widened definition of the nuclear family.[39]Regardless of who has parental responsibility, cultural, religious and social beliefs remain an issue in decisions regarding the welfare of every child.[40]

When parents disagree with each other because of opposing beliefs, a specific issue order can be sought from the court under The Children Act 1989[41]. A specific issue order allows the courts to address a particular question arising in relation to a child’s welfare and upbringing.[42] In Re T (minors)(custody: religious upbringing)[43] the court granted a specific issue order to allow a parent to bring up her child as a Jehovah’s Witness, with an exception that the child would receive blood transfusions if needed. In this example a specific issue order appears to resolve an issue based on differing parental beliefs although it only applied to a specific intervention if ever needed, as opposed to agreement for a procedure.

In Re J(Specific issue orders: child’s religious upbringing and circumcision) [44] the Family Court was faced with the issue of whether a male child should be circumcised. The child’s non-practicing Muslim father, who was separated from the child’s Christian mother who opposed it, requested the procedure. Wall J considered each aspect of section 1 (3) of the Children Act 1989 to ascertain the best interests of the child, concluding that circumcision would not be because of the non-Muslim upbringing the child would have. Furthermore, Wall J clarified that non-therapeutic male circumcision was an exception to the Children Act 1989, in that both parents must be in agreement. On appeal Butler-Sloss LJ reaffirmed this and highlighted the permanenceof male circumcision and the risks involved as being why it required joint agreement or a court order.[45] Similarly in Re S (Children) (Specific issue: circumcision)[46]the court followed the decision in Re J.

The British Medical Association (BMA) has issued guidance for doctors on non-therapeutic male circumcision and makes the legal position of parental agreement clear to doctors.[47] However, although the BMA considers circumcision as an invasive procedure with potential risks, they highlight the potential psychological benefits likely to be apparent if the procedure was part of the child’s family and upbringing.[48] Surgeons therefore have a duty to ensure parental agreement or a specific issue order exists in order to carry out the procedure, in recognition of the physical and emotional risks.[49]

Parental disagreement has further emerged as an issue for the courts where parents disagree over immunisation of their children.Within the UK immunisation has been affected in recent years by controversy surrounding the side effects of the MMR vaccine.[50] Despite being disproven, social attitudes have been affected and this has seen a reduction in compliance to a serious issue of public health.[51] In Re C (A child) (Immunisation)[52]the Court of Appeal upheld a lower court ruling of two cases where fathers successfully applied for a specific issue order for their children to be immunised, despite refusal from the children’s mothers. Thorpe LJ held that the issue was that of establishing the best interests of the child and based on the evidence presented to the judge at first instance, immunisation was paramount to the physical welfare of the children.[53] Wearmouth suggests that the decisionrecognises two harmful aspects of this parental disagreement based on a difference in beliefs.[54] Firstly, where a parent’s belief is contrary tomedical evidence supporting the protection of a child from potential physical harm, as a result of contracting an infectious disease that they have not been immunised against. Secondly, the potential impact on the child of parental disagreement, causing both physical and emotional distress.[55]

The court’s ability to apply the welfare principle of parens patriae is of particular importance where agreed parental beliefs cause disagreement with medical opinion. These cases are often focus on an external influence, such as religion or culture.[56] In Re A (Children) (Conjoined Twins: Surgical Separation)[57] the Roman Catholic parents of conjoined twins known as Mary and Jodie appealed against a decision authorising surgical separation. The surgery would definitely result in the death of one of the twins, who relied on her sister’s circulation system for survival. The parent’s beliefs were summarised by Ward LJ as being centered on the sanctity of life, a deeply held belief within their faith.[58]However, it was held that the parent’s beliefs were not in the best interests of the healthier twin Jodie and as such the court authorised the surgery. Ward LJ did sympathetically acknowledge the impossible situation for any parent regardless of belief but held that Jodie’s life had to be protected.[59]Sheldon and Wilkinson argue that the sanctity of life was considered but that it wasconsidered from a more plural medical and societal perspective, in relation to the criminal law as opposed to parental beliefs.[60]

The decision in Re A is argued as demonstrating that where life is threatened, parental religious beliefs will not be given greater weighting, as preservation of life is paramount. However, the decision in Re T (a minor) (wardship: medical treatment)[61], where an earlier decision ordering a liver transplant against the parent’s wishes was overruled, contradicts this presumption. Part of the decision in Re T was based on the child’s parents having clinical experience in looking after sick children, despite the medical evidence that surgery was in the child’s best interests. Butler-Sloss LJ held that parents who make a decision to refuse life-saving treatment should not be overruled unless it is absolutely in the child’s best interests. I disagree with her ladyship’s application ofthe law in this case. I support the argument that part of this ratio was influenced by the parent’s clinical knowledge and that had the justification been based purely on religious grounds the decision would have been different.[62] Put in a stronger way, the articulated clinical views of the parents were more acceptable to the court than religious belief. This is further supported by Leask’s argument that the courts predominantly follow medical evidence, providing it is not strongly disputed by other medical evidence, when addressing the welfare of children.[63]

Where a parental belief prohibits a specific intervention, such as blood transfusion in the case of a child whose parents are Jehovah’s Witnesses, the courts have consistently held that religious views will always be overruled if they are detrimental to the physical welfare of the child.[64] Ward LJ in Re Eciting the American decision in Prince V Massachusetts[65], held that ‘Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children.’[66]Although these cases concern older children, Woolley argues that for younger children the principle of parens patriae would apply in equal strength where physical harm will occur, casting further doubt over the decision in Re T.[67]Furthermore, the decisions in cases concerning religious beliefs support the position that where physical harm will occur, the law demonstrates that it will never consider parental religious belief to be in the child’s best interests.

Where Parental Beliefs Cause Harm: The Law’s Inconsistency

It is clear that the general principle in law is that if physical harm will occur as a result of parental beliefs, whether parents are in agreement or not, the courts are provided with both statutory and common law powers to act in the child’s best interests. Crucial to this is the child being exposed to actual or potential physical harm, but there are two instances where the law is inconsistent; allowing the refusal of immunisations and in providing that non-therapeutic male circumcision is lawful.

Immunisation

Thorpe LJestablishedin Re C that if two parents are in agreement not to immunise their child, the law could not enforce immunisation.[68]Furthermore, despite the strength of the medical evidence and the impact it had upon Sumner J in the first instance, it was agreed that the court could only look at the issue on an individual case basis.[69] The problem with this approach for immunisation is that the weight of medical evidence firmly supports the prophylactic use of immunisation.[70]If children are fit and well with no contra-indications for immunisation they should not be distinguished individually, as the issue is one of public health. However,by not considering refusal to immunise as being unlawful, these children are provided with no legal protection from physical harm or death if childhood infectious diseases such as measles are contracted. In essence the courts missed the opportunity to remain consistent with the principle that parental beliefs will not take preference where physical harm may occur. It is suggested that the only way the courts will acknowledge this is through a case brought by a child who sustained physical harm from an infectious disease, as a result of a decision taken by their parents not to immunise them against that disease.