The role of the courts in disagreements about a child’s medical treatment

The story of Aysha King - and his parents’ plight to seek alternative medical treatment for their son abroad, against the recommendations of his doctors in the UK - has gripped the nation over the last two weeks. The case provoked an outpouring of public support for the Kings and, earlier this week, the High Court discharged a wardship application, effectively ending the State’s involvement in Aysha’s medical treatment. 

The concept of Wardship is a complex one and requires the court to ensure that the person who is the subject of the proceedings is protected and properly taken care of. When a child is made a ward of court a High Court Judge, rather than the child’s parents, will make decisions about what is best for the child including, amongst other things, what medical treatment the child will or will not receive. 

Wardship is rarely used today and tends to be reserved for exceptional circumstances. Of the 125 applications for wardship made between April and June this year in family law matters, only 4 were granted. 

However, the case of Aysha King raises important questions about the legal options available when there is disagreement about a child’s medical treatment. In particular, what can parents do to resolve a dispute between themselves about what is best for their child. 

Where parents disagree on an issue relating to their child or children, such as what school they should attend or what role religion should play in their upbringing or indeed whether they should receive medical treatment, an application can be made to the Court for a Specific Issue Order. Alternatively, where a parent wishes to prevent the other parent from carrying out a certain act in respect of the child, such as preventing medical treatment or stopping the child from being taken abroad, they may wish to apply for a Prohibited Steps Order. The latter tends to be used for emergency situations where the medical treatment or removal of the child is imminent and is not appropriate for more routine matters involving the child. 

Before making an application, unless exempt, the Court will expect the applicant to have considered alternative means of resolving their dispute, such as mediation. If, however, this is unsuccessful then an application can be made. 

The Court will consider whether to make the Order sought and in doing so, must have the child’s welfare as its paramount concern. In deciding what is in the child’s best interests, the Court will have regard to a number of factors contained with the Children Act 1989. This includes any harm that the child has suffered or is at risk of suffering, the child’s physical, emotional and educational needs and the feelings of the child concerned (depending on the child’s age and understanding). The Court can only make an order if it considers that doing so is better for the child than making no order at all. 

If you need further advice about an issue relating to your child or any family law matter, our dedicated family law team at Smith Partnership can help. We are the only Legal 500 top tier Family team in Derby, we also have offices in Burton-on-Trent, Swadlincote, Leicester and Stoke. If you would like to speak to a member of our team please contact Peter Dadswell on 01332 225354 or email peter.dadswell@smithpartnership.co.uk.