By Charles Foster
In an emergency ruling in the Family Division of the High Court, Mr Justice Mostyn has ordered that a three-year-old boy undergo a bone marrow transplant against the wishes of the father.
The evidence apparently was that the transplant was the boy’s only realistic chance of survival. The father wanted the boy to go with him to an Arab country, but the court heard, and accepted, that the journey would “almost certainly” kill the child and that the bone marrow transplant would not be available there.
Mr Justice Mostyn ruled in favour of the transplant, finding that the court had jurisdiction to do so as the boy had been habitually resident in Britain whilst undergoing treatment at an English hospital.
The decision, although it has had some press attention, will be unsurprising to English lawyers.
The test applied by the judge was that under s 1(1) of the Children Act 1989: the welfare of the child must be paramount. This is regarded by most commentators as indistinguishable from the “best interests” test applicable where decisions are being made in relation to an incapacitous adult under the Mental Capacity 2005. While the courts have repeatedly emphasised that “best interests” are wider than merely “medical” best interests, there is a strong (though rebuttable) presumption that it is in the best interests of the patient to have life-sustaining treatment. That was clearly the position here. Had the child been “Gillick competent” (that is, where a child is able to consent to their own medical treatment without the need for parental permission or knowledge: Gillick v West Norfolk and Wisbech Area Health Authority) and declined treatment, the court could still have, and in these circumstances probably would have, ordered the treatment to go ahead nonetheless.
The wishes of parents and those with parental responsibility have no magical status in cases about the medical treatment of children. Although there is a lot of law about the status of those wishes, the best way to regard those wishes is as a (generally) good guide as to where the best interests of the child lie. Put another way, the duty of a person with parental responsibility is to give or withhold consent in the best interests of the child, but it is the court that is the ultimate arbiter of best interests (Re J (a minor) (wardship: medical treatment)). This is simply because it is generally the case that parents care deeply about their child and are good judges of whether or not the child would benefit overall from the mooted intervention. However, there are many cases where the parents’ views should be, and are, trumped by the court. The classic examples are Jehovah’s Witness cases, where parents refuse to consent to the administration of blood products on religious grounds (for example, the cases of Re E (a minor)  2 FCR 319; Re O (a minor) (medical treatment)  2 FLR 149; Re R (a minor) (medical treatment)  2 FLR 757; Re S (a minor) (refusal of medical treatment)  1 FCR 604.
This case is indistinguishable from these.