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The Limitations of Parental Rights and Responsibility

View profile for Louise Barretto
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What rights do parents have in regard to their children? We should rather ask - what responsibilities do parents have for their children?

The Children Act 1989 first introduced the concept of “parental responsibility” which was a deliberate move away from the idea that the parents have rights over their child and towards the idea that they have responsibilities for them which are more important. Parental power to control a child is not for the benefit of the parents but rather for the child.

It gives parents the responsibility for all the following things in their child’s life: education, religion and medical care, but also the more day to day issues of nutrition, recreation and outings. It is an elastic concept which will change from time to time with the needs of the child. But, there are circumstances when a court may interfere with the parents’ decisions.

Most of us have followed the tragic case of little Charlie Gard, the baby born with a genetic disorder that has left him unable to see, hear, move or breathe unaided.

Charlie was born on 4 August 2016 and is now 10 months old. His health has deteriorated significantly since he was born and he is now kept alive by a ventilator.

Charlie’s parents want to take him to the United States so that he can undergo treatment to try and arrest the disease that is killing him. They have managed, through sheer determination to raise the £1,3 million needed to enable Charlie to have this treatment.

Charlie’s parents’ argument is that their rights and status as his parents are being interfered with and because both parents are in agreement this is not a case that the court should involve itself in. They say the only circumstance in which the hospital should be able to interfere in the decision taken by the parents is if the child is likely to suffer significant harm.

The hospital treating Charlie wanted permission from the court to turn off the ventilator and provide palliative care to him as his doctors believed it was fruitless and indeed unethical to keep him alive when he could never be cured.

In Charlie’s case there were applications brought under the Children Act and under the Inherent Jurisdiction of the High Court. Both the applications are subject to the same principles articulated in the legislation which means that the paramount consideration has to be the welfare of the child.

Where there is a serious dispute about a child’s best interests then the child him or herself must be given an independent voice within the proceedings and so a guardian was appointed by the court to represent Charlie. In this case Charlie’s guardian agreed with the hospital. The court said that parents are not entitled to insist on treatment by anyone which is not in their child’s best interests.

The court also said that the “significant harm” requirement does not apply to hospitals asking for the court’s guidance on what treatment is or is not in the best interests of their patients. The court felt that Charlie would suffer significant harm if his suffering was prolonged without a realistic prospect of improvement. These conclusions were reached by the Court of Appeal after considering the trial judge’s conclusions based on the evidence given.

As has been reported in the Press, the parents are now waiting to hear whether permission has been granted to them, to have the case heard in the European Court of Justice. In the meanwhile the European Court has said that Charlie must be retained on life support until at least 19 June.

So we wait now to see whether ultimately it is a child’s parents whose decision will prevail or whether the court will favour the position of Charlie’s doctors. Either way, this has been such a terribly sad story that has touched the hearts of so many and sparked ferocious debate about the limitation of parental rights.

If you have any questions or need any advice in this area please call us on 020 7091 2700 and ask for a member of the Family team.