The issue in the following case concerns the concept of Parental Responsibility (PR). Those who have PR are responsible for making decisions on every aspect of their child’s upbringing. This includes decisions on whether a child should, or should not have any particular medical treatment. As more than one person can have PR for a child, disagreements will inevitably arise.
If those with PR disagree on any element of their child’s upbringing, they can apply to the family court for a Specific Issue Order. This means the court is asked to step in and make the decision for the parents when they otherwise cannot agree. Once the court has made its decision, this is final – the order must be carried out.
This case begins in Morocco where the child used to live with both parents. In 2016, the mother and child permanently moved to the UK and the father remained living in Morocco.
Just before the age of two the child was diagnosed with epilepsy; she would have up to 15 seizures a day. Each seizure caused her body to be rigid, followed by vicious shaking. The child was placed on medication which had lots of unpleasant side effects such as completely losing control of her bladder and bowels.
In February 2019, the child underwent an investigative procedure where 14 electrodes were implanted deep into her brain. This was to determine whether she was a suitable candidate for a particular type of brain surgery. The procedure determined that she was suitable for the surgery, and the surgeons supported this taking place.
The mother agreed with the surgeons, but the father did not. He felt that the risks outweighed the potential benefits. The mother consequently made an application to the family court for a Specific Issue Order so that the surgery could be performed.
The matter was presented to the Judge, Mrs Justice Knowles, on 9th August 2019. The Judge weighed up each side of the argument while considering similar cases like this. She referred to the ‘Welfare Checklist’, which is a list of factors that a Judge must take into account when making any decision about a child.
The law states that the court can only make an order if doing so is better for the child than not doing so – a rule known as the ‘no order principle’. With this in mind, the Judge carried out a careful assessment of the medical, social and psychological implications of the proposed surgery.
The surgeons concluded that the brain surgery was the only realistic way of stopping the seizures. It was thought the surgery offered the child a 50/50 chance of being entirely seizure free if it did not completely stop the epilepsy. Risk wise, doctors said there was a 1% – 2% chance of brain infection, arm or leg weakness or brain fluid leakage. The risk to life was thought to be between one in 500 to one in 1000.
The judge weighed up all factors and concluded the following:
“Putting myself in [the child’s] shoes, she would take into account that there are better outcomes if surgery is performed while she is younger. She would also take into account that all the other ways of managing her epilepsy, either drugs or a ketogenic diet, have failed to give control. I have come to the conclusion that [the child] would be likely to support surgery. The prize of being epilepsy free, of being like the other children with whom she goes to school would be worth, for her, the risk of the surgery failing to improve her condition.”
The judge made the Specific Issue Order, meaning the medical staff could legally carry out the surgery despite the father’s objections.
This case may serve as useful guidance for those who disagree on a child’s medical treatment.
The full judgement can be found here.
The Churchers team is always on hand to offer advice on this type of issue. If you would like to discuss making an application for a Specific Issue Order, please do not hesitate to contact the Family Law team Here.