Views of the child: Medical treatment

May 9th 2024

It is not unusual to be asked at what age the Courts take a child’s views into account. The short answer is “depends”, but it is a hot issue and has been for a long time. The Children Act 1989 starts with a statutory checklist of factors that the court must take into account when determining the child’s welfare. It includes: “the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”. So there it is, if you can work out what a child’s views are, you factor in how old they are, and you are confident that they understand what they are saying, the Court will take that into account, alongside a long list of other statutory factors.

In relation to medical treatment, the case of Gillick vs West Norfolk and Wisbech Area Health Authority case (1985) was ground breaking in permitting children of 13 and over to authorise their own medical treatment without parental consent or knowledge, this case stemming from guidance about contraception to under 16s.

J (Blood Transfusion: Older Child: Jehovah’s Witnesses), Re [2024] EWHC 1034 (Fam) (15 April 2024) looks at the issue again. The child in question was, at the time of this decision 17 years and 5 months and a lifelong Jehovah’s Witness, as were his parents. He needed surgery to remove an obstruction in his ureter and while he consented to the surgery, he did not consent to the use of blood products should they become necessary during the surgery. The hospital applied for permission to use blood products if they became necessary during the surgery.

The Court had to identify the risks, decide if the surgery was necessary and could be delayed and assess J’s “best interests in the widest sense”.

The judge considered the person before him (he gave evidence), he was intelligent and there was no suggestion that the views were not his own (he had instructed solicitors). 

His age was a factor, he would turn 18 before long at which time, his decision to refuse consent would be incapable of challenge, but the operation could not be delayed until that time without increasing risks to him. “J” convinced the court that he was aware of the risks and that he would feel “violated” and “tormented” if he was given blood products against his will.

The Court considered a number of cases, it being accepted law that the court can authorise medical treatment against the wishes of a child in necessary circumstances. The Court concluded that he could refuse blood products (also he could change his mind and the hospital accept that decision).

This case is not ground breaking, it builds on previous decisions, but it is noteworthy where a child is making a weighty decision and his views being treated as they would an adult’s.

There is a rare but cheering footnote to the judgment: the surgery took place and was successful.