[NEW] Child Welfare Cases + Academics Flashcards
Courts interpretation of “welfare”
“Welfare” -> “Paramount”
J v C (L McDermott = Sole Consideration)
Paramount = Sole Consideration
- FI: could send photos to C
- COA: photo doesn’t promote C Welfare even w comfort
- Paramount = Sole
Re C (A Child)
(Recognising difficulties & Realities in cases)
Courts responsibility = “least bad situation”
M v H (A Child) (educational welfare)
Charles J: Courts responsibility = “least bad situation”
Courts evaluation of welfare + considerations.
Case regarding jewish couple and religious educational upbringing of children.
(eg: happiness = virtues, judge = reasonable parent)
Re: G (Education: Religious Upbringing)
Munby LJ.
Court version of welfare:
- Wide evaluation of welfare (welfare, happiness, development) holistic approach
- However not just happiness = hedonism, happiness = virtues, achievement of goals
- Consider welfare in relational context
Judge considerations:
Judge = judicial reasonable parent + ever ∆ world:
1) Equality of opportunity - fundamental value of soc
2) Encourage & foster aspirations
3) Bring child to adulthood where can choose own life
Hale: even if welfare doesn’t apply, int obligations may require C needs ot be prioritised 3(1) UNCRC.
Courts usually refer to UNCRC despite no enforceable measures (not paramount, just first)
ZH (Tanzania) vs SSHD (SC Case)
- Suspected drug traffickers extradited
- Not in C best interest but overwhelming public good
HH v Italy (SC Case)
- Austerity gov programme = cap on maximum benefits to 1 household
- HRA 98 challenge -> impacted woman and children most (Art 14)
- Majority: not discriminatory
- Although women impact > men, difference had objective and reasonable justification (national economy) = proportionate
What were the 4 judges reasoning? (2 agree, 2 dissent)
R (SG) v SSWP (Child Poverty Action Group)
- L Reed: int. C not relevant bc suffer w M/F
- L Carnwath: Cap deprive C of £ reasons not connected to needs = incompatible w UNCRC but for parliament
- Hale (dissent): breach UNCRC deprive of necessary needs, greater need (^ C) = greater adverse effect (less money for each child)
- Kerr (dissent): agree with Hale, further pushed exception to dualist HR convention
[Siblings]
Basic Rule: Who is subject of application
Birmingham CC v H (A Minor)
Mother minor & her C seperated. Applied for contact.
HoL: whoever subject of proceedings = welfare test (baby)
[Siblings]
>1 Subject of app
Court’s objectives then and now.
Re T and E
-Wilson J: both take into acc & balanced against one another
Re A (Conjoined Twins Medical Treatment)
- No treatment, both die. Treatment, one die/
- COA: treatment
Most recent (2011): Re S (Children) - F want move both sons to Canada, only benefit I FI: Rej, COA: don’t treat as unit but separately (1 move)
- Treatment endorsed unanimously by medical opinion, parents opposed.
- w/o liver transplant, C would not live long. Parents didn’t consent. Courts sided w parents.
- Court: not in C best interest bc of pressure on parents.
- Consenting to operation jointly affects M & S, welfare of son = mother.
Re T (A Minor) (Wardship: Medical treatment)
- Unusual factors: both parents healthcare professionals experienced w children
- C undergone unsuccessful surgery before causing C much pain and distress
- Parents had moved to distant commonwealth country
Thus; courts relied on welfare principle: best interest of every child that difficult decisions taken by parents entrusted to care for child. Much intrusion if treatment approved, having to return back to Uk etc.
Non - legal solutions: therapy would fix problems better than family justice system due to factors of conflict
Thorpe LJ Re L (A Child) (Contact: DV)
[Child in medical law]
- Courts can rely on consent of parents, despite opposition of child IF doctor believes in best interest of patient. Doctor would also prefer to obtain court authorisation before doing so.
Re W (A Minor) (Medical Treatment: Courts Jurisdiction)
[Child in medical law]
Suffering anorexia, court directed that C remain in clinic with use of reasonable force to detain. (controversial as if C had been >18 would be unlawful)
Re C (Detention: Medical Treatment)
[Child in medical law]
Blood transfusion ordered. J reluctant bc nearly 18, but life and death.
Re P (Medical Treatment: Best interests)
[Child in medical law]
HoL: if doc decided in best int of 16 yo to be given contraceptive and competent to understand, doc permitted w/o obtaining consent of parents.
Gillick v W Norfolk and Wisbech AHA [<16yo]
[Child in medical law]
Silber J further listed 5 criteria doc satisfied that competency been met
Case that reconsidered Gillick
R (Axon) v SS for Heath [reconsidered Gillick]
(Siber J)
1. Understand all aspects of advice
2. Medical professional not been able to persuade YP to inform parents (re: contraception)
3. YP likely to have sexual intercourse w or w/o contraception
4. Unless YP receives treatment physical/mental health likely to suffer
5. Best interest of YP to receive treatment w/o consent
[Child Competency]
Does child understand nature of medical condition/proposed treatment?
-child described as ‘thoughtful, intelligent, articulate’ refused treatment bc refused to accept he had condition. Failure to understand medical state = lacked capacity to refuse treatment.
Re JA (Medical Treatment: Child diagnosed w HIV)
[Child Competency]
Does child understand nature of medical condition/proposed treatment?
- L found incompetent bc did not appreciate manner of death if treatment was not performed bc doctors didn’t tell her. (controversial)
Re L (Medical Treatment: Gillick Competency)
[Child Competency]
Does child understand moral/family issues involved?
Gillick explanation.
L Scarman (Gillick) Parental Rights reliant on Parental duty. Children mature at different ages.
[Child Competency]
Does child understand moral/family issues involved?
Child didn’t appreciate how much grief parents might experience if he died
Re E (A Minor) (Wardship: Medical Treatment)
[Child Competency]
How much experience of life does child have?
- Brought up by Jehovah’s Witness parents, courts believed lived sheltered life and wasn’t exposed to different religious views.
Re L (Medical Treatment: Gillick Competency)
[Child Competency]
How much experience of life does child have?
- 15yo strongly influenced by mother to have capacity to make decision
F v F
[Child Competency]
Is child capable of weighing information appropriately to be able to make decision?
- 15yo refused MMR vacine bc contained animal products (she was vegan). Not competent bc fixated on ingredients and didn’t see wider picture. (Criticised: strong moral stance doesn’t mean lacking capacity)
F v F
[Child Competency]
Is Child in fluctuating mental state?
If fluc = court treat as incompetent.
Re R (A Minor) (Wardship: Consent to Medical Treatment)
[When Doc can rely on parental consent]
- doctor who wishes to treat patient as flak jacket of consent would provide protection from liability in criminal/tort law. Flak jacket could be provided by competent child or person w PR or court.
Re W (A Minor) (MT: Courts Jurisdiction)
[When Doc can rely on parental consent]
- where someone w PR gives consent, unnecessary and inappropriate to bring matter before court. Doc should provide treatment.
Re K, W and H (Minors) (MT)
[When Doc can rely on parental consent]
- 15yo refused heart transplant bc didn’t want another person heart. CoA authorised operation to preserve life, didn’t matte rif Gillick competent.
Re M (MT: Consent)
[When Doc can rely on parental consent]
- ECHR accepted EC would permit treatment to be carried out against wishes of child while relying on parental consent.
Nielsen v Denmark
[When Doc can rely on parental consent]
- parental rights terminate when YP reach sufficient understanding and intelligence to understand fully what is proposed. However, single obiter statement by FI judge, cannot overrule well-established CoA cases. However indicates unhappiness w way law developed.
R (Axon) v SS, Silber J
Russian parents opposed for rational reasons but Black J authorised stating that parents are not permitted to make martyrs of children.
Re MM (MT)
judge must decide on C best interest, welfare paramount from pov of child. Strong presumption to favour course of action prolonging life, but not irrebuttable.
Wyatt v Portsmouth Hospital NHS Trust
Transboy sought court order to estrange himself from family and prevent information about his life given to them due to family not complying with his new gender identity.
Keehen J approved bc sufficiently mature (at 14yo) to make decisions about life. His art 8 rights protected, parents art 8 right rejected bc almost 16 years old and cannot control where mature enough to give valid consent.
PD v SF and Others
[Child bringing proceedings]
Welfare not paramount, 7 considered factors:
Re H (Residence Order: Child’s Application for Leave)
factors:
- Is matter serious enough to justify court hearing
- Should family resolve issue themselves:
- How Mature is child?
- Likelihood of success:
- Would child suffer from being involved in protracted dispute between parents?
- Will all arguments a child wishes be presented to court?
- Impact of HRA
[Child bringing proceedings]
Is matter serious enough to justify court hearing:
Holiday is trivial.
Re C (A Minor) (Leave to Seek Section 8 Order)
[Child bringing proceedings]
Should family resolve issue themselves:
Re C (A Minor) (Leave to Seek Section 8 Order)
[Child bringing proceedings]
How Mature is child?
Re S (A Minor) (Independent Representation) - understanding > age. Applying to court may indicate maturity. Re H (A Minor)(Role of Official Solicitor) - whether child be able to give instructions in light of complex evidence, and emotional turmoil caused to child involved in litigation
[Child bringing proceedings]
Likelihood of success
- if application not hopeless, would be favourable factor in granting leave.
SC (A Minor) (Leave to Seek Section 8 orders)
[Child bringing proceedings]
Would child suffer from being involved in protracted dispute between parents?
Re S (A Minor) (Independent Representation): - 11yo wanted to replace guardian. CoA: necessary to respect C wishes but also protect from danger. Being closely involved w bitter dispute = harm child, better to have buffer of guardian ad litem.
Re C (Residence: Child's Application for Leave) - not to be in child's benefit to hear evidence of warring parents.
[Child bringing proceedings]
Will all arguments a child wishes be presented to court?
- J would not bring before court any argument that father wouldn’t be making in application for residence order = nothing to gain.
RE H (Residence Order: Child’s Application for Leave):
[Child bringing proceedings]
Impact of HRA
accepted that boy could alert judge to dangers believed his father posed to half-sister.
Re A (Contact: Separate Representation)
[Child representation]
- Educated, articulate and reasonable mature boys given permission to represent themselves, previous judgement barring this was “plainly wrong”.
- Very limited circumstances where inappropriate to permit competent child participation (when obvious risk of harm, incapable of comprehending risk etc)
Thus:
Family proceedings rules 2010 r16 covers children representation. Practice direction 16 A, court must determine if in welfare of child to be represented.
Mabon v Mabon
[Child representation]
- CoA confirmed that children had right to be heard in proceedings concerning them, but didn’t mean right to give evidence.
- In cases where welfare reports made clear child’s wishes, nothing to be gained by seeing.
Re P-S
[Child representation]
Can attend even if not represented. (no longer presumption that attendance is harmful if court considers child to have maturity, reason, and the context of the hearing)
A CC v T
