In their best interests: at what point should children make their own decisions?

Family Law|August 14th 2012

Phew! Two hectic, golden weeks (or so it’s seemed to me) are finally over, and all the magnificent Olympians are on their way home as London returns to normal. It’s certainly been the most fantastic fortnight I can remember for a long time in this country, and there is a palpable feel-good factor.

The news has been pretty much focused on the Olympics over the past fortnight, with not much else receiving a look in. But if you happen to be a family lawyer there have been cases galore – some of which are tragic and deeply controversial.

I am rounding them up on the blog today and tomorrow. As always with family law cases; you may, or may not, agree with the outcomes.

As readers will know, in English law only the child counts when a case is being decided that affects them. The welfare of a child is paramount, the interests of the parents and wider family are largely irrelevant. Usually when a family (whether parents, siblings or grandparents) discover that to be the case it only heaps more pain on the situation. They feel powerless to act in what they regard as the best interests of the child, despite the fact that they feel they know them better than anyone else – and certainly better than a stranger. But as such they are also likely to experience powerful emotions, and the question has to be asked:  are they acting in the best interests of the child, or themselves?

Making decisions in these types of cases undoubtedly requires the highest calibre of judges in the field. Getting it wrong could profoundly affect a child for life – and in the most extreme of cases, lead to a child’s immediate death.

So what has happened so far in August?

In two cases, heard only a fortnight apart, two children are being allowed to die against the sincerest and most express wishes of their respective families.

In the first case, Mr Justice Hedley, one of the most respected children judges in the country, made a ruling that permitted the life support machine of a brain damaged and comatose one-year-old to be turned off. In a moving judgement (NHS Trust v Baby X [2012] EWHC 2188 (Fam)) he said:

“No understanding of life is complete unless it has in it a place for death which comes to each and every human with unfailing inevitability. There is unsurprisingly deep in the human psyche a yearning that, when the end comes, it does so as a ‘good death’.

“It is often easier to say what that is not rather than what it is but in this case the contrast is between a death in the arms and presence of parents and a death wired up to machinery and so isolated from all human contact in the course of futile treatment”.

Yesterday, the Daily Telegraph reported the outcome of a similar case before Mr Justice Ryder, who is so well thought of as a High Court Judge that he is heading the reform of the family courts. The case before him concerned a chronically ill eight-year-old boy who needs ever increasing sedation while a life support machine has taken over his entire lung and heart function. The hospital believes there is no hope of his recovery, that further treatment is futile and that there is every possibility of an increasingly painful death.

Consent has now been given by Mr Justice Ryder for the hospital to remove him from the life support machine. The parents of the child were against this and the boy’s teenage sister has said she feels the hospital acted much too quickly to withdraw treatment.

Did they? Should they have waited longer? The family, who have had to come to terms with this most appalling of dilemmas, were seeking more time for their son and were denied it by a judge acting “with a heavy heart”. His decision focussed on the quality of the child’s approaching death and that his life had been lived “to the full”.

Who would ever wish to be a judge in such cases? Not me for sure.

And that’s the point. A judge dealing with the most serious types of case has to be completely objective, experienced and utterly and completely sure that further treatment is futile and there is no viable alternative. In both of these tragic cases these experienced judges reached that conclusion and the law will soon take its effect.

No words can sufficiently convey my sympathy to those parents, or indeed to the judges who are called upon to make those decisions.

While a very different situation, I have sympathy for the child and parents involved in the case of L v P (Paternity Test: Child’s Objection) [2011] EWHC 3399 (Fam) (28 July 2011). It involves a father’s application for a DNA test. He was contesting paternity after the mother issued an application for child maintenance, seeking £20,000 of payment arrears. The mother of the child had no strong objections to a DNA test, but the 15-year-old child who was the subject of the application, did. Almost certainly an objection by the mother would have been overruled. But was the child able to object to having a DNA test?  And how did that balance against the right of a father to have paternity confirmed? It would normally be regarded in law as in a child’s best interests to have her paternity confirmed.

A guardian was appointed for the child as the case was rightly transferred up to the High Court. The relevant law is contained in Part 3 of the Family Law Reform Act 1969 as amended.

Mr Justice Hedley also heard this case and decided in favour of the child. He decided that she was what is known as “Gillick competent” and fully understood the issues in relation to the medical tests. “Gillick Competence” is used to decide whether a child (16 years or younger) is able to consent to his or her own medical treatment, without the need for parental permission or knowledge.

Furthermore, as the judge commented: “the Children Act respects the right of children to resist certain types of medical assessments and recognises that it can be unwise to compel these matters upon older children which, were it compelled upon a younger child may not present a significant problem.”

Of the child herself, Mr Justice Hedley said:

“…a substantial part of her reasoning is rational and cogent and reflects a degree of maturity and understanding which compels respect. To that one must also add that were this a case in which she wished to consent, she would undoubtedly be treated as wholly entitled to consent, irrespective of what anybody else chose to say…”

Balanced against the slimmest of evidence from the father that he may in fact not be just that, the judge, taking into account the child’s overall welfare and concerns, declined to order that the test take place. The child had argued that the outcome could profoundly alter her relationships with both her father and her mother, by whom she may well then feel deceived. In view of the cumulative effect of the circumstances and how they would impact upon the child, the judge agreed and declined to make the order.

Whilst I agree with the judgment in this instance, and in particular the careful consideration of all the implications that could affect this child if the order were to be made, there is a further case which I will discuss on the blog tomorrow that also concerned the question of whether a child was sufficiently competent to make a big decision affecting her own life. The major difference being that the County Court judge’s decision and his comments in that judgment left me, I am very sorry to say, stunned and amazed – seeming both misguided and even, somewhat flippant.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. Observer says:

    “As readers will know, in English law only the child counts when a case is being decided that affects them. The welfare of a child is paramount, the interests of the parents and wider family are largely irrelevant.”
    In principle, supposedly. In practice, hardly ever.
    It is not in the best interests of the children that they do not see one parent after separation, yet the courts are quite happy with a situation where fathers are routinely bullied out of the lives of their children.
    It is not in the best interests of the children when mothers are given leave to remove them to another country (at the complete expense of the father’s relationship with them), simply because they allege that they are distressed about having to remain in the UK; yet, this routinely happens in our great courts of justice.
    One could go on showing how the child paramountcy principle is a complete sham, little more than rhetoric.

  2. DT says:

    This is very interesting and so incredibly important.
    We often think (not just as lawyers, but as adults too), that we know what is best for children, but do we?
    I don’t think there’s a right or wrong answer for such cases and there’s certainly no formulae, and of course each case turns on it’s own facts.
    The courts are willing to listen to children and I like that because I think that it’s incredibly important.
    At a time when everything around them is / has been turned on it’s head, to listen to a child is empowering and it’s vital that they have a voice.
    However, the thing that worries me about this, is the extent of influence that may have been exerted by a parent; we know it happens. What’s more if the LA are involved, so will social workers and the likes and sometimes they are given cases and case loads which are not commensurate with their skills and experience. This being the case, the requisite ‘tools’ may not be in place to deal with complex matters.
    It’s not an exact science and it’s impossible to get it 100% right – 100% of the time and I wouldn’t want to swap places with those judges who find themselves in some very unenviable positions.
    I agree with the decision in LvP; I think that this was precisely the correct outcome for the correct reasons.
    I have thought a lot about children making their own decisions since I recently read the case of RE C (A Child) [2012], regarding a 10 yr old Jewish girl allowed to convert to Christianity. The right outcome certainly did not prevail on this occasion!

  3. Marilyn Stowe says:

    Hi DT
    Yes you are correct! Let’s discuss it further tomorrow and compare the application of the welfare principle, in L v P
    Best wishes

  4. Alistair Nunn says:

    Here is something to think about. At the present time there is a big campaign throughout schools and colleges to prevent not just the radicilisation of children but adults too. Consider this. If you can persuade an adult to move to a country that is totally alien leaving not just them, but their children too open to all kinds of dangers, then what chance has a child got when they are faced with a barrage of alienation from a mother against their father to be able to see through to the truth? Why do the British authorities treat Parental Alienation as if it is something that does not exist when it is capable of destroying so many families?

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