Article Text
Abstract
Parental responsibility (PR) was a concept introduced by the Children Act (CA) 1989 which aimed to replace the outdated notion of parental rights and duties which regarded children as parental possessions. Section 3(1) CA 1989 defines PR as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child’. In exercising PR, individuals may make medical treatment decisions on children's behalf. Medical decision-making is one area of law where both children and the state can intercede and limit parental decision-making. Competent children can consent to treatment and the state can interfere if parental decisions are not seemingly in the child's ‘best interests’. This article examines the concept, and limitations, of PR in relation to medical treatment decision-making.
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Introduction
Parents with parental authority are overridden easily once the welfare principle and public policy are considered. The child is ultimately protected—whether by the state or by their call on the welfare principle.1
Parental responsibility (PR) was a concept introduced by the Children Act (CA) 1989 which aimed to replace the outdated notion of parental rights and duties2 which regarded children as parental possessions. Section 3(1) CA 1989 defines PR as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child’. Unfortunately, with one exception (the administration of a child's estate (s.3(2)&(3))), the specific rights and duties associated with PR are not set out and the scope of PR must be determined from case law: individuals with PR must care for, protect and provide for their children; they may be accountable to the state/other individuals for their children's actions and they can make decisions, including medical treatment decisions, on their children's behalf.
Medical treatment decision-making in children is complex and should involve parents, healthcare professionals (HCPs) and, where appropriate, children. The general legal position is that, except in an emergency, where consent is presumed, the consent of an individual having legal authority to consent (parent or child) is required to undertake any medical procedure on an incompetent child. Any treatment decision (consent or refusal) should be in the child's ‘best interests’ (CA s.1(1)).
Medical decision-making is one area of law where both children and the state can intercede and limit parental decision-making. Legislation (Family Law Reform Act (FLRA) 1969 and the Mental Health Act (MHA) 1983) and case law confirm the limits of PR as children mature: competent children have the right to consent to treatment, regardless of parental opinion. Court involvement may also occur when adolescents refuse treatment, usually supported by their parents. Although primarily focusing on adolescent autonomy, these cases clarify the position of parents and the court when children refuse treatment.
Occasionally, circumstances arise when, because of competing intra-family interests or parental religious/cultural/personal views, parents cannot, or will not, make decisions with an individual child's welfare at heart. This may lead to conflict with treating HCPs. If the conflict is irresolvable, the court may be asked to determine the appropriate course of action. In these circumstances, the limits of PR are clearly demonstrated.
This article examines the concept, and limitations, of PR in relation to medical treatment decision-making.
Parental responsibility
Conceptually, PR emphasises that parents, rather than the state, are primarily responsible for raising children.3 In Anglo-Welsh law, the acquisition of PR is not as straightforward as biological parenthood and the CA 1989 sets out the allocation/acquisition of PR. A child's mother (s.2(1)&(2)(a)) and a child's father who is married to the mother (s.2(1)) automatically acquire PR. Unmarried fathers may acquire PR by registration of the father's name on the child's birth certificate, if the child was born after 1 December 2003 ((s.4(1)(a)); marrying the child's mother (s.2(3)); a PR order (s.4(1)(a)); a PR agreement with the mother (s.4(1)(b)); a residence order (ss.8, 10 and 12(1)) or guardianship on the mother's death (s.5(3),(4)). Other individuals may acquire PR by parental consent (while living (s.4A) or following death (ss.5&6)); a residence order; a special guardianship order (s.14A–F); an adoption order (Adoption and Children Act 2002 s.46) or in public law proceedings, by a care order (s.33(3)(a)) or an emergency protection order (s.44(4)(c)).
Several individuals may hold PR contemporaneously (s.2(5)) and each may act alone when exercising PR (s.2(7)), provided consent of more than one individual is not required by law (s.2(8)). In practice, however, case law has determined that decisions involving health, education and other important issues pertaining to children should be made jointly—see, for example, Re G (Parental Responsibility: Education) [1994] and Re PC (Change of Surname) [1997]. Where parental disagreement occurs, a specific issue order (s.8) should be sought—for example, Re J (Specific Issue Orders: Child's Religious Upbringing and Circumcision) [2000], Re D (A Minor)(Wardship: Sterilization) [1976], Re C (Welfare of Child: Immunisation) [2003].
If a child is subject to a care order, parents and the local authority (LA) share PR for the order's duration (s.33(3)). In the event of disagreement, however, the LA may ‘determine the extent to which a parent’ may meet his/her PR (s.33(3)(b)).
Medical treatment decision-making and PR
Legally, it is well established that competent adults have the right to make treatment decisions, based on rational/irrational reasoning, regardless of the consequences of their choices. Most children, however, lack the capacity to make such choices and therefore rely on parents to make decisions on their behalf. Legally, except in an emergency, parental consent is required to perform any medical procedure on any incompetent child. Theoretically, parents are empowered to give, or withhold, consent on their children's behalf. This includes consent to non-therapeutic interventions, provided they do not cause significant harm. Court authorisation, however, must be sought where the intervention is primarily for another's benefit (eg, bone marrow/solid organ donation).
Internationally, courts recognise parental rights in relation to children's upbringing. These rights, however, are not absolute but are qualified by a duty to ensure their health, safety and well-being. Parents are expected to seek appropriate medical care and to exercise their PR in accordance with the welfare principle. If parental failure to seek/accept appropriate medical care results in a child suffering/potentially suffering unnecessarily, criminal prosecution may occur. In practice, prosecution is unusual. Instead, courts are asked to exercise their powers under the doctrine of parens patriae (parent of the nation), a powerful competing interest to parental rights. This doctrine refers to a public policy that allows state interference to protect a child's welfare. Parental decisions that appear contrary to the child's welfare can be challenged or even overridden and the courts retain ultimate, overriding, control:
Respect for the natural authority of parents requires that the courts override the rights of parents only when there is clear evidence that they are acting contrary to what is strictly owing to their children.4
The limits of PR
PR does not confer absolute parental decision-making rights. Competent children and the court may override parental rights. These competing interests occur most often in the context of adolescent consent to treatment and parental treatment refusal.
PR and the competent child
Childhood is a period marked by immense physical, emotional, psychological and moral development. Where medical treatment consent is concerned, childhood can be divided into three stages: early childhood, ‘Gillick-competent’ and 16- and 17-year-olds. At the two extremes, decision-making capacity is relatively straightforward: there is a presumption that very young children lack decision-making capacity and therefore those with PR must make decisions in the child's ‘best interests’.
At the other extreme, the FLRA 1969, which was enacted primarily to address the difficulties in requiring parental consent when children lived away from home, gives 16 and 17-year-olds the statutory right to consent to medical treatment, including associated procedures, without parental permission (s.8(1)). It does not, however, apply to non-therapeutic procedures or treatment refusal. Although section 8(1) removes exclusive parental consent, section 8(3) retains parental consenting rights if children refuse treatment.
In the context of mental health, the MHA 1983 section 131(2) provides competent 16- and 17-year-olds with the right to informal admission/treatment without parental consent. In contrast, however, to the situation regarding general medical treatment, if a 16-/17-year-old refuses admission/treatment, parental consent will not suffice (MHA 1983 Code of Practice 2008). Instead, a Mental Capacity Act (MCA) 2005 assessment must be undertaken. If the child lacks capacity within MCA section 2(1), they may be assessed, and detained, under the MHA 1983, if the relevant criteria are met.
The grey area, ‘Gillick-competent’ children, is more complex and these cases have tested the limitations of PR, while theoretically enhancing children's autonomy.
Gillick and Axon
…parental rights are derived from parental duty and exist only so long as they are needed for the protection of…the child.5
The recognition of adolescence as a distinct developmental stage is relatively recent6 and legislation does not specifically consider adolescence. Both the United Nations Convention on the Rights of the Child (UNCRC) and the CA 1989 (s.1(3)) acknowledge that parental duties/powers/rights dwindle as children mature and that children have a moral right to be heard, particularly when decisions concern them. These rights, however, are qualified by recognition of children's vulnerability and their need for protection.
The right of children under 16 to consent to (but not refuse) treatment, without parental permission, has developed through case law. Viewed as a landmark decision in favour of children's autonomy, Gillick v West Norfolk and Wisbech AHA [1985]5 was, in essence, a direct challenge to PR. Mrs Gillick challenged a Department of Health and Social Security circular that allowed doctors to provide contraception to children under 16 without parental consent. In reaching their judgment, the Law Lords avoided any decree of absolute parental authority, instead approving Lord Denning's view that:
…the legal right of a parent…ends at the eighteenth birthday; and even up until then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child…5
Lord Fraser, while acknowledging that parental rights/powers did not disappear completely until a child's 18th birthday, suggested that imposing a rigid legal age of ‘emancipation’ would fail to reflect the reality of childhood development. He believed that any decision should depend ‘upon a judgment of what is best for the welfare of the particular child.’5
Lord Scarman agreed, explicitly declaring the underlying legal principle to be that:
parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.5
In applying this declaration, he described a rigorous test for competence and held that parental consent rights end ‘when the child achieves a sufficient understanding and intelligence to enable him…to understand fully what is proposed.’5 Gillick certainly suggested that PR is limited by a child's competence.
Twenty years later, R (Axon) v Secretary of State for Health (Family Planning Association intervening) [2006]7 addressed similar issues in the context of abortion advice/treatment. The focus, however, was parental versus children's rights. Mrs Axon argued that, in addition to misrepresenting Gillick, the updated Department of Health guidance infringed her European Convention Human Rights (ECHR) Article 8 rights (right to respect for private and family life). Silber J dismissed outright her claim of misrepresentation, concluding that Gillick applied to all forms of medical treatment/advice. He clarified that Lord Fraser's guidelines were legal preconditions5 that must be followed. Interestingly, he re-worded Lord Fraser's guidelines to include Lord Scarman's stringent test for capacity. The guidelines now necessitate both a very high level of understanding on the child's behalf and the belief that the child's ‘best interests’ necessitate treatment without parental consent.
In addressing the parental versus children's rights issue, Silber J considered both case law and human rights instruments (UNCRC, ECHR) and concluded that:
…the right of young people to make decisions about their own lives by themselves at the expense of the views of their parents has now become an increasingly important and accepted feature of family life.7
His view on ECHR Article 8 was similar:
As a matter of principle, it is difficult to see why a parent should still retain an article 8 right to parental authority relating to a medical decision where the young person concerned understands the advice provided by the medical professional and its implications.7
Theoretically, Axon promotes childhood autonomy at the expense of PR,8 yet the focus appears to remain on child welfare: Silber J's re-wording of Lord Fraser's guidelines demands a higher level of understanding. The case of Mabon v Mabon [2005],9 which concerned independent representation of articulate teenagers in a residence dispute, is cited frequently throughout Axon. While Mabon acknowledged an increased focus on children's autonomy, it contemporaneously reiterated child welfare. Mabon clarified that if a child was unable to fully appreciate a potential risk, the court could declare the child not Gillick-competent. This could be construed as suggesting that, where the risks of medical treatment include significant harm or death, PR (or parens patriae) will prevail because this is what is in the child's interests.
Children, refusal of treatment, psychiatric illness and PR
Legislation and case law give competent children the right to consent to treatment and, in doing so, place limits on the decision-making capacity of those with PR. Adolescent treatment refusal cases, however, do not necessarily support limiting parental decision-making. Case law clarifies the position of parents (and the courts) when adolescents refuse medical treatment.
Re R (A Minor)(Wardship: Consent to Medical Treatment) [1991]10 was the first adolescent case following Gillick. R was a 15-year-old girl who was in LA care because of difficult family dynamics. She became increasingly mentally disturbed and was detained under section 2 MHA 1983. She was subsequently transferred to an adolescent psychiatric unit where her detention was lifted.
The LA, who shared PR with her parents, consented to pro re nata administration of antipsychotic medication. R refused to consent and the LA, concerned about her refusal's validity, withdrew their consent, seeking instead court authorisation to allow treatment. This was granted. Lord Donaldson, in overriding R's refusal, applied a very complex keyholder analogy to explain the parental position in relation to medical treatment10: both parents and the child were keyholders to the door of consent but neither held the master key. Either could consent to treatment, and in circumstances of disagreement, parental consent would suffice: ‘only a failure to, or refusal of, consent by all having that power will create a veto’.
Considered a retreat11 from Gillick in terms of adolescent rights, Re R essentially reiterated the paramountcy of child welfare. If a child's refusal appears contrary to their welfare, consent may be sought from those with PR. Although this decision attracted academic criticism,12 13 it is consistent with legal opinion that children should be protected from medical treatment decisions that may adversely affect their lives, until they reach adulthood.
Re W (A Minor)(Medical Treatment: Court's Jurisdiction) [1993]14 followed Re R. W, a 16-year-old girl with anorexia, was subject to a LA care order. The LA and W's aunt shared PR. W refused treatment and the LA asked the court to approve treatment. The court gave approval and the child appealed. Before the appeal was heard, however, W became unwell and the court granted an emergency order allowing W to be treated. In his judgment, Donaldson J reconsidered his opinion delivered in Re R.
He suggested that Lord Scarman's decision in Gillick meant that, although exclusive parental rights terminated when a child reached a ‘sufficient understanding and intelligence’,5 parents still retained consent rights; section 8(1) FLRA 1969 allows 16- and 17-year-olds to consent to, but not refuse, treatment and section 8(3) clarifies that parental consent remains effective. In discussing the FLRA 1969, however, his concern was protecting doctors from litigation, rather than promoting PR.
Donaldson J's opinion that the court's powers are theoretically limitless and ‘extend beyond the powers of a natural parent’, undermines PR and, as discussed below, potentially casts doubt on parental decision-making, particularly if there is parental–doctor disagreement.
Governed primarily by the CA 1989 and the MHA 1983, the admission and treatment of children with mental illness remains controversial and places considerable strain on families. Although some children are admitted involuntarily (using parental/LA/court consent; secure accommodation order (s.25); MHA 1983), most children are admitted ‘informally’15 with parental consent. Informal admission using the CA 1989 theoretically reduces the stigmatisation associated with MHA 1983 detention and the paramountcy of child welfare and well-defined PR make this the preferred admission route. The CA 1989 does not, however, specifically deal with complex mental illness, allow non-consensual treatment or provide safeguards for children admitted with parental consent. Additionally, while the CA 1989 gives children the right to refuse psychiatric assessment/treatment in limited circumstances,16 the court can override this. Where mental health, and the CA 1989, is concerned, PR is, seemingly, unlimited.
Under the MHA 1983, children can be admitted to hospital in four ways: informally (s.131), compulsorily following professional recommendation (Part II), via court (Part III) or via prison (Part III). Compulsory admission occurs when a mentally ill child requires assessment or treatment and voluntary admission is not possible. Unlike the CA 1989, the MHA 1983 sets out provisions designed to safeguard patients' welfare. A limited number of physical treatments, however, can still be administered without consent.
The MHA 1983 places limitations on PR: while the situation for children under 16 is similar to general treatment, 16- and 17-years-olds may consent to admission/treatment without parental consent (s.131); parental consent will not suffice if they refuse admission/treatment. Additionally, while parents (as nearest relatives) play a crucial part in the MHA's administration, once a child is admitted under the MHA 1983, individuals with PR lose all decision-making ability with their powers being curtailed by an amendment to the MHA,17 which allows objecting relatives to be declared ‘unsuitable to act’. The court may appoint another relative or, more commonly, the LA to act as the nearest relative. This provision clearly limits (and undermines) those with PR.
Limits on PR: parental refusal of treatment
Society expects any treatment decision to serve a child's welfare and accordingly presumes that ‘responsible’ parents will accept evidence-based medical opinion. Occasionally, parents may not feel able to accept medical advice and if parental–doctor disagreement is irresolvable, the court may become involved. Under the doctrine of parens patriae, the court can intervene and authorise, or refuse to authorise, medical treatment. In doing so the court may do several things: make the child a ward of the court; appoint a child's guardian or make a CA 1989 section 8 order—prohibited steps order (when two parents disagree) or specific issues order (deal with one-off decisions).
Parental medical treatment refusal has sparked intense, emotive debate for more than 30 years. The first two cases, which concerned parental treatment refusal for children with Down's syndrome, brought parental decision-making into the public domain. In R v Arthur [1981],18 the child's parents did not want the child to survive. The consultant paediatrician, acceding to parental wishes, prescribed nursing care, water and dihydrocodeine. The child died 69 h after birth and Dr Arthur was charged with murder, which was dropped to attempted murder after the postmortem demonstrated that the child would have died anyway. The defence was able to demonstrate that Dr Arthur's actions were within the accepted limits of contemporaneous medical practice and he was acquitted. The court supported the notion of parental decision-making. There is, however, evidence that few paediatricians would have acted in this way.19
The ruling in Re B (A Minor)(Wardship: Medical Treatment) [1981]20 was in stark contrast to R v Arthur. Baby Alexandra had duodenal atresia, a complication of Down's syndrome, and required surgery. Believing that death was in her ‘best interests’, her parents refused surgery. Authorising surgery, contrary to parental wishes, Templeman J made it clear that the court's role was to consider the child's ‘best interests’ under the welfare principle. While ‘parental and medical views would be taken into account…ultimately the court would decide’.20 This stance was adopted in the Canadian case In Re (Superintendent of Family and Child Service) and Dawson [1983],21 where McKenzie J, emphasising the welfare principle, determined that parental opinions should be considered but not determinative and that the courts could override them.
The majority of reported cases following Dawson reiterate the Re B principles—see, for example, In Re C (A Minor)(Wardship: Medical Treatment) [1990], Re O (A Minor)(Medical Treatment) [1993], Re S (A Minor)(Medical Treatment) [1993], Re R (A Minor)(Blood Transfusion) [1993], R v Portsmouth Hospitals NHS Trust ex parte Glass [1999].
Re J (A Minor)(Child in Care: Medical Treatment) [1992]22 set out some fundamental legal principles which should be considered when parental treatment refusal potentially conflicts with the child's interests and may place the child at clear and substantial risk: the child's ‘best interests’ are paramount; parental views are important, not determinative; the presumption is in favour of life; exceptionally, courts may authorise ‘non-treatment’ and HCPs cannot be compelled to provide treatment.
In Re T (A Minor)(Wardship: Medical Treatment) [1997],23 seen as an anomalous (or conversely, as a more progressive) decision, the court allowed parents to refuse a liver transplantation for their 18-month-old child. In doing so, it concluded that non-medical factors needed to be considered when determining ‘best interests’ and ‘the best interests of every child include an expectation that difficult decisions affecting the length and quality of its life will be taken for it by the parent to whom its care has been entrusted by nature’.23 Parental refusal was framed in terms of the child's distress and discomfort rather than parental religious/ethical beliefs. The child's long-term survival, however, depended on parental co-operation and the danger of parents equating the child's ‘best interests’ with their own, to the child's detriment,24 remains.
Post-Re T decisions appear to focus entirely on the court's perception of the child's welfare and demonstrate the, seemingly impotent, position of those with PR:
▶ Parental views should be considered but are not determinative—Re A (Children: Conjoined Twins: Surgical Separation) [2001].
▶ In more difficult decisions, parental decisions may prevail—An NHS Trust v MB [2006].
▶ ‘Best interests’ is evaluated solely from the child's perspective, not the reasonableness of parental refusal—R v Portsmouth Hospitals NHS Trust, ex parte Glass [1999].
▶ Medical opinion will generally be accepted but doctors cannot be compelled to provide treatment they deem futile—Re Winston-Jones (A Child)(Medical Treatment: Parent's Consent) [2004].
▶ Where the potential benefits of recommended medical treatment outweigh suffering, treatment will be authorised despite parental objection—Portsmouth NHS Trust v Wyatt and Wyatt, Southampton NHS Trust Intervening [2004].
▶ ‘Sanctity of life’ will yield to a child's welfare and treatment withdrawal may occasionally be authorised—A NHS Trust v D [2000].
▶ Court opinion is appropriate when parental–medical disagreement is irresolvable—D v An NHS Trust (Medical Treatment: Consent Termination) [2003].
Adolescent treatment refusal cases reiterate these principles—see, for example, Re E (A Minor)(Wardship: Medical Treatment) [1993], Re S (A Minor)(Consent to Medical Treatment) [1994], Re L (Medical Treatment: Gillick Competence) [1999], Re M (A child)(Refusal of Medical Treatment) [1999], Re P (Medical Treatment: Best Interests). While these cases principally focus on childhood autonomy, the children had parental support. There is, however, an absence of robust discussion about parental decision-making capacity and the presumption can only be that the courts were not only overriding adolescent autonomy, but were also overriding parental views.
Limits on PR: non-therapeutic procedures
Parental consent to non-therapeutic procedures, which are not necessarily in the child's best interests, creates ethical and legal dilemmas. Non-therapeutic procedures do not usually benefit the child and therefore the presumption is that such procedures are not in the child's interests. This presumption can be refuted if it can be demonstrated that the potential benefits outweigh the risks. Four areas of non-therapeutic interventions raise specific issues: research, solid organ/bone marrow donation, female sterilisation and religious/cultural procedures.
Research in children is important for a wide variety of reasons but the legalities of paediatric research are not well established. Research consent is governed by Medicines for Human Use (Clinical Trials) Regulations (2004) and ethical guidelines. Parents can consent to their children being involved in clinical trials. It is crucial for the individual child that potential benefits outweigh foreseeable risks and that when the research risk is more than minimal with slight, uncertain or no potential benefit, parents do not give consent. There is no existing case law in the UK but two US cases (TD v NY State Office of Mental Health [1996], Grimes v Kennedy Kreigler Institute [2001]) suggest that parents should not consent to their children being involved in research where there is any risk of harm.
Donation of living tissue raises significant ethical issues. Is it appropriate for parents to authorise donation? While parents can authorise medical treatment based on a child's best interests, it is arguable whether tissue donation is ever in the child's best interests. Child donors are often siblings of other critically ill children and parents are placed in the unenviable position of having to balance the risk to one child against the benefit to another. This places them in a very difficult position and the Human Tissue Authority Code of Practice recommends the use of an independent assessor and, if necessary, the courts, to determine ‘best interests’. While bone marrow donation may be justified on the basis that a sibling's survival brings the donor benefit, it is important to remember that if transplantation fails, child donors experience considerable psychological distress. Living paediatric solid organ donation is extremely rare and approval of the court and a panel of three members of the Human Tissue Authority is required.
Non-therapeutic sterilisation of handicapped girls remains a sensitive, controversial issue. It raises questions of parental versus children's rights, who should be determining ‘best interests’ and the appropriateness of parental consent. A series of cases (Re D (A Minor: Wardship Sterilisation) [1976], Re B (A Minor: Wardship Sterilisation) [1987], Re M (A Minor: Wardship Sterilisation) [1988], Re P (A Minor: Wardship Sterilisation) [1989], Re HG (Specific Issue Order: Sterilisation) [1993]) have considered this issue. In Re B [1987], Lord Templeman determined that sterilisation of a minor is beyond the scope of parental consent. This common law position is still valid: a court order is required to provide the necessary consent before non-therapeutic sterilisation can be performed. It is likely that a number of unauthorised sterilisations occur under the guise of therapeutic treatment for other conditions. Doctors referring or treating girls/young women should consider the irreversibility of the procedure and seek court authorisation in all cases.
The fourth, and perhaps most controversial, area concerns procedures undertaken for religious reasons. Non-therapeutic religious circumcision of male infants continues to be debated. Currently, it is legal in the UK but if the guidelines on lawful surgical intervention are considered (ie, the intervention must be medically necessary, be in the child's best interests and not expose the child to unnecessary suffering/injury), non-therapeutic circumcision should constitute a special offence under the Child and Young Persons Act 1933. Court intervention is uncommon but circumcision is only permitted if both parents give consent. The usual situation where any individual with PR can consent does not apply to circumcision. If parents cannot agree, a specific issue order can be sought. With increasing emphasis on child rights and mounting pressure from human rights groups, non-therapeutic circumcision may possibly require court approval.
Parents have the right to raise their children in the religion/culture of their choice but they do not have the right to subject their children to harmful religious/cultural rituals. Parents may be criminally liable for causing harm to their children in the name of religion/culture. In an unreported case, R v Adesanya [1974], a Yoruban woman was convicted of causing bodily harm to her two male children when she used a razor blade to produce scarification on the cheeks of her children, a ritual practised by her community. Mrs Adesanya was convicted but was given an absolute discharge. The criminal law could not sanction illegal behaviour but cultural factors were taken into account when determining her sentence. It is unlikely that the sentence would be so lenient these days.
Female genital mutilation (FGM) has been illegal in England and Wales since the Government introduced the Prohibition of Female Circumcision Act in 1985. The CA 1989 did not consider FGM but the governmental document Working Together to Safeguard Children 1989 gave LAs the ability to exercise their powers under CA 1989 section 47 if they believe that the child is likely to be or has been the subject of FGM.
A loophole in the 1985 Act meant that parents could take their children ‘on holiday’ and have FGM performed there. The Female Genital Mutilation Act 2003 made it illegal to take girls who are UK nationals or UK permanent residents out of the UK for the sole purpose of FGM. Parents who consent to FGM anywhere in the world are liable criminally and may be imprisoned for up to 14 years.
Conclusion
The CA introduced PR as the ‘rights, duties, powers, responsibilities and authority’ that parents have in relation to their children. In the context of medical treatment decisions, individuals with PR can give valid consent to a child's treatment. This position, however, is subject to a number of restrictions.
Any decision must be in the child's ‘best interests’ and while parents can consent to most forms of surgical/medical/dental treatment, they cannot consent to sterilisation of a female child or to procedures that primarily benefit other individuals or are based on religious beliefs. The greatest limitations on the decision-making capacity of those with PR are the child's age and the state's interest in protecting children's welfare. Legislation allows 16- and 17-years-olds to consent to treatment, regardless of parental opinion; common law allows Gillick-competent children to consent to treatment, regardless of parental opinion. Legislation and common law authorises those with PR to consent to treatment in the presence of child refusal but the courts will not usually allow parents to refuse medically recommended treatment.
In essence, those with PR can make medical treatment decisions on behalf of children, provided their decisions concur with professional views. If they do not, their decisions are open to judicial challenge.
Footnotes
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Competing interests None.
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Provenance and peer review Not commissioned; externally peer reviewed.