"You never really understand a person until you consider things from his point of view...until you climb into his skin and walk around in it.” -Atticus Finch, To Kill a Mockingbird.
Harper Lee's character, Atticus Finch, here was teaching a lesson in acceptance and empathy to his daughter, Scout. Although the days of 1930’s style courtroom drama are over (thankfully), I have recently enjoyed reading a court judgment in which the Judge appears to have channelled her inner Atticus Finch to help her make a decision on whether or not surgeons can carry out brain surgery on a 7 year old child against her father’s wishes.
The issue concerns the concept of Parental Responsibility (PR). Those who have PR are responsible for making decisions on every aspect of their child’s upbringing. This includes decisions on whether a child should, or should not have any particular medical treatment. As more than one person can have PR for a child, disagreements will inevitably arise.
When, for example, parents with PR disagree on an element of their child’s upbringing, they can apply to the family court for a Specific Issue Order. This effectively means the court is being asked to step in and make the decision for the parents when they otherwise cannot agree. Once the court has made their decision, this is final and the order must be carried out.
This is what happened recently - a mother asked the family court to decide whether or not her daughter could have life changing brain surgery to alleviate her epileptic seizures. This is because the child’s father opposed the surgery taking place, and the surgeons could not proceed without the father’s consent.
This case begins in Morocco where the child used to live with both parents. In 2016 the mother and child permanently moved to the UK and the father remained living in Morocco.
Just before the age of 2 the child was diagnosed with epilepsy, and she would have up to 15 seizures a day ranging from 5 to 40 seconds. Each seizure caused her body to go rigid and then viciously shake. The child was placed on medication however as a side effect she would completely lose control of her bladder and bowls.
In February 2019 she underwent an investigative procedure where 14 electrodes were implanted deep in her brain. This was to determine whether she was a suitable candidate for a particular type of brain surgery. The procedure determined that she was suitable for the surgery, and the surgeons therefore supported this taking place.
The mother therefore wanted the surgery to go ahead, but the father did not because he felt that the risks outweighed the potential benefits.
The Judge was therefore asked to make this decision.
The Judge had to weigh up each side of the argument whilst considering similar cases like this. This involved referring to the ‘Welfare Checklist’, which is a list of factors that a Judge must take into account when making any decision about a child. Additionally, the law also states that the court can only make an order if doing so is better for the child than not doing so (something called a ‘no order principle’). With this in mind, the Judge carried out a careful assessment of the medical, social and psychological implications of the proposed surgery.
The purely medical factors were important. The surgeons had concluded that the brain surgery was the only realistic way of curing her seizures. It was thought the surgery offered a 50 / 50 chance of being entirely seizure free if it was not completely cured. Risk wise, doctors said there was a 1% - 2% chance of brain infection, arm or leg weakness or brain fluid leakage. The risk to life was thought to be between 1 in 500 to 1 in 1000.
The judge weighed up all factors, and, channelling Atticus Finch, said the following:
"Putting myself in [the child’s] shoes, she would take into account that there are better outcomes if surgery is performed while she is younger. She would also take into account that all the other ways of managing her epilepsy, either drugs or a ketogenic diet, have failed to give control. I have come to the conclusion that [she] would be likely to support surgery. The prize of being epilepsy free, of being like the other children with whom she goes to school would be worth, for her, the risks the surgery failing to improve her condition."
The judge made the Specific Issue Order, meaning the medical staff could legally carry out the surgery, despite the father's objections.
This case therefore serves as useful guidance for those who may disagree on a child's medical treatment.
The Churchers team is always at hand to offer advice on this type of issue. If you would like to discuss making an application for a specific issue order, please do not hesitate to contact Daniel Norris on https://www.churchers.co.uk/churchers-teams/team-norris/.
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