This was the vexed question posed at the 11th Family Justice Council Annual Debate last night. (The discussion was chaired by the Right Honourable Sir James Munby, President of the Family Division of the High Court and Chairman of the Family Justice Council).
Anyone worrying that such a narrow question could lead nowhere fruitful need not have. Speakers were quick to point out its limitations and springboard from it into other terrain.
Such as whether our courts should be interfering with parental discretion, to permit medical authorities to sanction or withdraw medical treatment from children, on the basis of ‘best interests’. Rather than only where necessary to prevent ‘significant harm’, as for state interference through care proceedings.
Characteristically in the context of such a debate, though the speakers sat notionally for or against the motion, their nuanced positions revealed considerable overlap. Here are just a very few of the points they made (heavily paraphrased):
Michael Freeman – Emeritus Professor of English Law at UCL:
For the motion, Freeman argued that only the courts were equipped for the task:
- Asking ‘who else could make that decision?’ he reflected on the limitations of parents, doctors, social workers and others who might be tasked with this, by comparison to the reasoned, independent, evidence based, decision making available to the courts;
- Freeman also observed that the arguments for limiting state intrusion to abuse were strong ones and hinted at the subjectivity of even the category of ‘significant harm’ with the example of male circumcision.
Jonathan Herring – Professor of Law at University of Oxford.
Arguing against the motion, Herring argued;
- that at one level the court doesn’t have ‘the final say’ anyway. (It’s role is advisory and declaratory, and to the extent it has the final word, it’s decision will reflect at least in part, the cumulative positions of those involved)
- that it shouldn’t have the final word, if it is to give parental discretion the weight it deserves and recognise the often intertwined nature of children’s interests (particularly very sick young children’s interests) with those of their parents. (To that extent the very notion of the court having ‘the final say’ is unhelpful);
- that there is no good reason, in medical cases, to depart from the broad principles of parental discretion other than on the basis of significant harm that apply in care cases;
- legal interventions should be better designed with clearer duties to support parents and work with them in recognition that what is in children’s best interests is collaboration and consensus between parents, medics and court decision makers.
Victoria Butler-Cole – Barrister at 39 Essex Chambers
For the motion, Butler-Cole made the case that the court should have the ‘final say’, and that the existing legal framework already allows courts to make the nuanced judgments they need to make. She questioned whether shepherding complex situations from one arbitrary and largely undefined category (‘best interests’), to another (‘significant harm’) was the answer to any limitations:
- the actual human situations fall on a nuanced spectrum from parental positions that are obviously significantly harmful all the way to parental views that might be seen as merely differing from the courts view of best interests;
- ‘futility’ does not fall naturally into a category of significant harm;
- shifting loving, responsible parents such as, for example, the parents of Charlie Gard into a framework for abuse and neglect would be unwarranted and unhelpful.
With similarities to Herring, she argued for better ways of getting independent expertise in early to maximise capacity for agreement outside of court wherever possible. She flagged some early stage indicators of serious breakdown in trust between parents and doctors (such as issues with language use, and communication about likely (but not certain) clinical outcomes).
Matthew Parris – Former MP, author, columnist and broadcaster.
Against the motion, Parris nevertheless agreed with Bulter-Cole’s conclusions. Other observations included that :
- the issue wasn’t so much whether the court should decide but the weight to be given to parental wishes within the process;
- so called ‘futility’ cases were in fact precisely the cases where there was so little to lose that (in the context of sedation), parental discretion really ought to take precedence;
- arguably the parent’s interests in such cases should legitimately prevail. Not least because even babies might be assumed to have a vested interest in their own parents’ wellbeing after their death, including the comfort of knowing everything had been tried and the likelihood of their adult relationship surviving the bereavement.
If past years are anything to go by, the full text of each speaker will be up on the FJC website shortly. Apologies in advance for inevitable losses of nuance and meaning in these heavily paraphrased snippets, designed to give a flavour of what is to follow to those unable to attend..
With thanks to the Family Justice Council for promoting discussion of matters of significant public interest and importance for families affected.