[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)
